Federal Court of Australia

EFT24 v Minister for Immigration and Citizenship [2026] FCA 1395

ORDERS

THE COURT ORDERS THAT:

1.    Until final orders are made on the originating application for relief under s 39B of the Judiciary Act 1903 (Cth) or further order of the Court, the respondents whether by themselves, their officers, employees, agents or contractors or otherwise, be restrained and an injunction be granted restraining them from removing the applicant from Australia.

2.    Any party may apply on 7 days' written notice to vary or discharge order 1.

3.    Until further order, a person who is not a party may not inspect the affidavits or submissions filed in these proceedings without an order of a judge.

4.    A referral certificate issue for legal assistance for the applicant.

5.    The costs of and incidental to the application for injunctive relief are reserved.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant is a citizen of the Federal Republic of Nigeria. His application for a protection visa has been refused. The Minister for Immigration and Citizenship has given notice to the applicant that he will be removed from Australia to Nigeria. He is scheduled to be removed later today. Acting on his own behalf, the applicant seeks an injunction restraining his removal from Australia. The application is brought against the Minister, the Secretary of the Department and the Commonwealth. It was heard on short notice last Thursday. The hearing was conducted with the assistance of an interpreter. Less than an hour before the hearing, the Minister filed an outline of submissions opposing the relief sought and a brief affidavit. After the hearing, I reserved my decision until this morning.

2    The affidavit and submissions in support of the injunction application were apparently sophisticated in their expression and in the legal concepts they advanced. However, they raised many points which, at best, were at the periphery of what was relevant to a claim for relief restraining the applicant's removal from Australia. For example, the submissions invited the Court to note that the applicant does not challenge the lawfulness of his detention but foreshadowed a case that might be made if the applicant was successful in obtaining relief and was then held in detention indefinitely. There could be no basis for an entirely anticipatory case of that kind. They also adopted a strange mode of expression that often involved stating what was not being submitted or adopting odd forms of language to obscure the obvious. They were also unduly detailed as to matters that assumed little significance. The affidavit contained notations as to how it might be completed. In short, the affidavit and submissions had many characteristics that indicated that they had been prepared with the assistance of some form of artificial intelligence agent. Nevertheless, it was possible to discern recognisable claims from the submissions.

3    The applicant was given an opportunity to make oral submissions. I mean no criticism when I say that those submissions did not develop the legal basis for the injunction application beyond that which was stated in the written submissions. They focussed upon the consequences for the applicant and his children if he was to be removed and his remorse and explanation for his past criminal offending. They manifested distress at the prospect of his imminent removal. However, the jurisdiction of this Court depends upon the demonstration of an arguable basis for a legal claim that the applicant may be entitled to remain in Australia, that is some prospect that he might obtain a visa.

4    The applicant's written submissions disclose two possible legal claims that might support the grant of an injunction. First, the applicant has a pending application for special leave to appeal to the High Court. It concerns the decision made some time ago to refuse his application for a protection visa. The applicant sought review of that decision in the Administrative Appeals Tribunal. The Tribunal refused his application. The applicant's subsequent application to the Federal Circuit and Family Court of Australia (Division 2) to review the Tribunal's decision was dismissed. An appeal to this Court against that decision was also dismissed. On the evidence, the applicant filed an application for special leave to appeal to the High Court on 15 July 2026 and a decision on that application is expected in October 2026. The applicant seeks to ensure those proceedings are not made futile by his removal from Australia. He seeks an injunction pending the outcome of his special leave application and, if special leave to appeal is granted, until the determination of the appeal or further order.

5    Second, the applicant says that on 17 October 2025 he made a request for the exercise of the Minister's personal statutory power to intervene pursuant to s 48B of the Migration Act 1958 (Cth) and allow him to make a further application for a protection visa. He says that he has received no response to that request which he says must be dealt with in accordance with the terms of a Ministerial Instruction dated 4 September 2025. In effect, his claim is that the terms of the Ministerial Instruction required officers of the Minister's department to assess his request in accordance with its terms. Further, if that assessment had occurred then the request was required to be referred to the Minister. He seeks relief declaring excess of executive power by the departmental officers and requiring his request to be dealt with according to law, which he says requires any dispositive evaluation of his request to be made by the Minister. The submissions for the applicant accept, as they must, that he has no basis for seeking an order requiring the Minister to consider exercising the power conferred by s 48B. On the authorities, the Minister cannot be required to decide whether to consider a request for the exercise of powers of the kind conferred by s 48B. What the applicant seeks is conformance with the requirements of the Ministerial Instruction. He believes that if that was to occur then his request would be referred to the Minister. If that was to happen then there would be the possibility of a favourable exercise of the Minister's power to allow him to make a further application for a protection visa. If that was allowed then, whilst the further application was pending, the statutory duty to remove the applicant from Australia would not arise.

6    In what follows, I will refer to these distinct claims as Claim 1 and Claim 2.

7    Claim 1 invokes the Court's appellate jurisdiction, particularly its jurisdiction to make interlocutory orders after the hearing of an appeal. A single judge of the Court may exercise that jurisdiction: s 25(2B) of the Federal Court of Australia Act 1976 (Cth). It is well established that a Court from which an appeal lies to the High Court with special leave may grant a stay or an injunction to preserve the subject matter of an appeal (and should be the court where any such application is first made): Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681.

8    Claim 2 concerns the duties of departmental officers when dealing with requests for the exercise of the power under s 48B of the Migration Act and seeks to invoke the Court’s original jurisdiction under s 39B of the Judiciary Act 1903 (Cth). The claim does not concern a decision made under the Migration Act of a kind that is excluded from this Court's jurisdiction. Rather, it seeks to challenge the exercise of executive power by departmental officers. The allegation is to the effect that departmental officers failed to undertake actions that were required to be undertaken, namely the consideration and referral of the applicant's request to the Minister in accordance with the Ministerial instruction.

General principles

9    There was no issue between the parties as to the principles to be applied in considering whether to grant an interlocutory injunction. They were explained in Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74] (Dowsett, Foster and Yates JJ).

10    An applicant for injunctive relief must demonstrate a sufficient likelihood of success to justify the preservation of the status quo pending the trial. The success to be demonstrated is as to the probability of demonstrating at trial an entitlement to relief according to law. The injunction must be protective of the claim to that relief. It must be directed to preserving the integrity of that claim.

11    An applicant for injunctive relief must also demonstrate that the balance of convenience favours relief. 'The assessment of harm to the plaintiff, if there is no injunction, and the assessment of prejudice or harm to the defendant, if an injunction is granted, is at the heart of the basket of discretionary considerations which must be addressed and weighed as part of the Court’s consideration of the balance of convenience and justice': Samsung at [62], see also [66]. The assessment of the adequacy of damages will always be important: at [63]. The apparent strength of the applicant's case will often be an important consideration to be weighed in the balance: at [67]. It may also be necessary to consider and evaluate the impact on third persons and the public generally: at [68].

12    The Minister says that these principles apply both to Claim 1 and Claim 2. However, a submission is advanced for the applicant that to the extent that relief is sought to preserve the subject matter of the special leave application all that is required to be demonstrated is that the prospects be 'not insubstantial'. Reliance is placed upon the reasoning of Kiefel J in Mercanti v Mercanti [2017] HCA 1.

The Migration Act provisions requiring removal from Australia

13    As matters presently stand, the applicant is being detained as an unlawful non-citizen who has no pending visa application. The terms of s 198 of the Migration Act apply to the applicant. They require his removal 'as soon as reasonably practicable'.

14    Section 197E(1) provides:

For the purposes of s 198, it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial Intervention power in relation to an unlawful citizen.

15    The term 'Ministerial Intervention power' includes the power conferred by s 48B. Section 197E(1) applies whether or not a request has been drawn to the Minister's attention: s 197E(4).

16    In addition, there is an avoidance of doubt provision that states that an officer's duty to remove as soon as reasonably practicable arises irrespective of whether there has been a request for the Minister to intervene and the fact of a request is irrelevant to whether or not removal is reasonably practicable: s 197E(2).

17    There is further provision for suspension of the duty to remove where the Minister does decide to consider whether to intervene: s 197E(5) to (10).

The Ministerial Instruction

18    The Ministerial Instruction concerns 'how to deal with certain requests to exercise the intervention powers under subsection 48B(1)' (para 1.1). It is said to enable officers of the Minister's Department to 'put a Minister in a position to consider making a procedural decision' (para 1.2). It refers to the public interest in preventing the making by non-citizens of 'unmeritorious repeat requests to prolong their stay in Australia' (para 1.8). It also refers to the public interest being served by providing a way for new information or changed country conditions or individual circumstances to be considered (para 1.9). The Instructions contain information about who may make a request and how a request is to be made (paras 6 and 7).

19    Significantly for present purposes, the Ministerial Instruction provides for how a request is to be processed. It is expressed in terms that require the request to be finalised without referral to the Minister (para 8.1) or referred to the Minister (paras 8.2 and 8.3). It also requires the receipt of requests to be acknowledged (para 9.1). It specifies the requests that are inappropriate to refer to the Minister (para 10.1). One such category is a repeat request (para 10.1(e)). There are criteria as to when a request should be referred to the minister on a 'full submission' (para 11). Other requests referred to the Minister are to be brought to the Minister's attention on a 'summary submission' (para 12). There are instructions as to the matters to be included in a submission to the Minister when requests are referred to the Minister (paras 13 and 14).

20    One of the criteria for referring a request to a Minister on a full submission is 'where changes in the non-citizen's circumstances…relating to Australia's non-refoulement obligations have occurred after a [protection visa] refusal or cancellation, and that new information or change may mean the non-citizen would engage Australia's non-refoulement obligations were they to be removed from Australia' (New Information Criterion).

The applicant's request dated 17 October 2025

21    The applicant deposed to having made a request for Ministerial intervention dated 17 October 2025, supported by a statutory declaration dated 22 October 2025 (Request). Copies of the Request and the statutory declaration were annexed to the applicant's affidavit. He said that the Request was expressly made under the Ministerial Instruction.

22    He also deposed to various matters that had occurred since the Tribunal made its decision to affirm the refusal of his application for a protection visa. He expressed his belief that no decision-maker exercising a personal power of the Minister had ever considered those matters.

23    I have examined the terms of the Request. Amongst other things, it appears to contain details of matters that have occurred since the Tribunal's decision. Further, it is reasonably arguable that those details would satisfy the New Information Criterion in the Ministerial Instruction. They concern events of violence that have been directed to members of the applicant's family in Nigeria. The Request also refers to how those events give rise to concerns as to the applicant's physical safety if he was returned to Nigeria. It also refers to changes in his family circumstances that have consequences for two of his children, particularly the treatment of their mother for cancer.

24    The Minister relied upon an affidavit of a solicitor sworn on information and belief. It deposed to previous requests by the applicant for Ministerial intervention. It produced documents that showed that the previous requests had been referred to the Minister and refused. Those requests included a request for intervention under s 48B (made on 16 April 2025) and a request for personal intervention under a different provision that allowed the Minister to grant a visa to a person in detention (made on 4 June 2025).

25    The affidavit deposed to the following further matters as to those requests. On 18 September 2025 (that is, after the date of the Ministerial Instruction), the applicant was notified that the Minister had declined to consider intervening in respect of the request made on 4 June 2025 and that request had been finalised. A further letter from the Department to the applicant dated 9 October 2025 was produced. It referred to the applicant's earlier request for intervention under s 48B being affected by 'a negative personal procedural decision' made by the Minister. This appears to be a reference to a decision not to consider the request. The letter went on to state:

Lodging a new request for Ministerial Intervention

The Minister has issued the Department with new Ministerial Instructions for dealing with requests for intervention under sections 46A and 48B of the Migration Act 1958. It is open to you to submit a new request for Ministerial Intervention and have it assessed by the Department against the new Ministerial Instructions.

You can only request Ministerial Intervention in writing. You must specify the paragraph 11.1 criteria from the new Ministerial Instructions that you meet and provide all information relevant to assessing whether you satisfy those criteria.

26    The applicant claims that it was in response to this invitation that he made the Request that is the basis for his Claim 2.

27    The solicitor also deposed that he was instructed by a legal officer within the Minister's Department 'that the Department was unable to locate any record of any Ministerial Intervention request made by the applicant on 17 October 2025'. As to the form of this evidence, I note that the affidavit of the applicant does not say in terms that the request was made on 17 October 2025 and it says that the request was supported by a statutory declaration dated 22 October 2025.

28    Quite properly, in circumstances where there was a conflict as to the factual position, counsel for the Minister accepted that the interlocutory application should be dealt with on the basis that the Request had been made, that is on the basis of the evidence for the applicant.

29    However, the Minister sought to rely upon certain aspects of the earlier request that had been made on 4 June 2025 that were said to raise the matters relied upon in the Request.

30    At the hearing, the applicant accepted that he had made previous unsuccessful requests for Ministerial intervention. Given the position of the applicant as to the earlier requests and the acceptance by the Minister that the interlocutory application was to be approached on the basis that the Request had been made and the affidavit otherwise dealt with the arrangements that had been made for removal (which were not contentious), I received the Minister's affidavit.

31    Since the interlocutory hearing, I have been able to read the attachments more closely. They include a document dated 4 September 2025 headed 'Negative Personal Procedural Decision'. It is in the following terms:

I, TONY BURKE, Minister for Immigration and Citizenship, consider that:

•    a large number of requests for Ministerial intervention under section 48B of the Migration Act 1958 (Act) have been impacted because of the practice that the High Court of Australia in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10 held to be beyond the executive power of the Commonwealth; and

•    identifying and dealing with those requests on a case-by-case basis would involve an unwarranted use of Commonwealth resources; and

•    it is not feasible in any event for me or any other Minister to give personal attention to those requests, having regard to our other responsibilities; and

•    I intend to issue new instructions for my Department to apply when assisting Ministers in exercising their power under section 48B; and

•    a person who is adversely affected by this decision, and wishes again to have a Minister make a decision under section 48B, could make a new request for such a decision subject to those instructions as in force from time to time;

therefore, exercising my power under subsection 48B(l) of the Act and acting in the public interest, I decide not to consider making a substantive public interest decision under that subsection in relation to any request which:

a)     was made before the date of this decision; and

b)     has not, at the date of this decision, been the subject of a decision by a Minister under subsection 48B(1) of the Act; and

c)     was not made by or on behalf of a person identified in the annexure to this decision.

32    Therefore, on the Minister's evidence, it appears that the matters raised by the applicant in his request made on 4 June 2025 have not been considered by the Minister in relation to the applicant's request for intervention under s 48B. Rather, they were considered in the context of a different type of power which allows for consideration to be given to the grant of visas to those in detention. The Request concerns the lifting of the bar upon making a further application for a protection visa. It appears that there was a decision made by the Minister not to consider any requests made by persons around that time for the exercise of the power conferred by s 48B and for the persons involved to be invited to make a new request should they wish to do so. Further, those requests were to be dealt with by departmental officers according to a new instruction from the Minister being the Ministerial Instruction. Consequently, the applicant's past request for the exercise of the power under s 48B (made on 16 April 2025) has not been brought to the attention of the Minister. Instead it has been refused as part of a global procedural decision on the basis that the applicant could make a further request.

33    After the interlocutory hearing, the applicant sought to file a further affidavit dealing, amongst other things, with the circumstances in which he said he made the Request. Included in that affidavit were some details about when and why he made the Request. There are instruction notations within the affidavit as to the kind of further information to include, but there is no additional information. The affidavit does say that the Request was sent in response to the letter from the Department which said that it was open to the applicant to submit a new request and have it assessed according to the Ministerial Instruction. Having regard to the concession by the Minister and the documents relied upon by the Minister forming part of the solicitor's affidavit, so much may be accepted for the purposes of the interlocutory application.

34    There are other matters addressed in the applicant's additional affidavit. The applicant also seeks to rely upon further submissions lodged after the hearing of the application. I will treat the lodgement of these additional documents by the applicant as a litigant in person as being the subject of an application for leave to adduce the evidence and rely upon the submissions.

The issues for interlocutory determination

35    In the above circumstances, the following issues arise for determination:

(1)    Should the Court receive the applicant's additional affidavit and submissions on the interlocutory application?

(2)    What is the test to be applied in assessing the merits of Claim 1 in considering whether to grant relief pending the outcome of the special leave application (and the appeal if leave is granted)?

(3)    Having regard to the answer to (2), does Claim 1 have sufficient merit to support the grant of an interlocutory injunction?

(4)    Is there a serious question to be tried as to Claim 2?

(5)    If yes to (4), what is the significance of s 197E?

(6)    If there is a serious question to be tried, does the balance of convenience favour the grant of an interlocutory injunction? In particular, what is the significance of the statutory duty to remove as soon as reasonably practicable as expressed in s 198 and s 197E for the balancing exercise?

(7)    If yes to (6), in what terms should any injunctive relief be expressed?

36    For reasons that will emerge, it is convenient to begin with Issue (4).

Issue (4): Is there a serious question to be tried as to Claim 2?

37    In the applicant's written submissions, Claim 2 was advanced without reference to s 197E. I will deal with them on that basis noting that the Minister relied upon the terms of s 197E. The Minister's contentions as to s 197E will be considered in dealing with Issue (5).

38    In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; (2023) 279 CLR 1, the High Court considered the extent to which the Minister may issue instructions to departmental officers as to the circumstances in which a request for the exercise of a statutory powers in the Migration Act like that conferred by s 48B will or will not be referred to the Minister for consideration. Kiefel CJ, Gageler and Gleeson JJ reasoned that powers like s 48B exclude the capacity for an executive officer other than the Minister to make the discretionary value judgment that must be made on the facts of the particular case as to whether to consider the request and, if so, whether to exercise the power to grant a visa: Davis at [14]-[15]. The Minister can exercise the power to make a decision whether to consider exercising the power by providing an instruction to departmental officers as to the circumstances in which the Minister will or will not consider exercising the power: Davis at [16]-[17]. However, the instruction cannot confer any core aspect of the decision-making power on departmental officers: Davis at [18]-[19], [29]-[31].

39    Their Honours reasoned further that the conferral of a power like s 48B contemplates that departmental officers will comply with instructions issued by the Minister: Davis at [26]. Consequently, Ministerial instructions to departmental officers which purport to confer aspects of the Minister's personal decision-making authority on departmental officers will infringe a statutory limitation on executive power: Davis at [33]-[42].

40    Gordon J agreed with the above reasoning: at [66], see also [98]-[102]. In doing so, her Honour also said at [96]:

Where a statute conditions powers or functions by reference to the persons who can exercise them, the circumstances in which they can be exercised, and the purposes for which they can be exercised, there will not be any unconstrained executive power or function covering the same subject matter that is preserved. If a statute regulates or controls how executive power is to be exercised, then the statute governs to the exclusion of any residual power.

(footnotes omitted)

41    Edelman J posed the question for decision in the following terms: 'did the departmental officials themselves exercise a liberty that is granted to the Minister personally?': at [108], see also [148]. His Honour concluded that by reason of the terms of the Ministerial instruction under consideration, as a matter of substance the departmental officials had unlawfully exercised the liberty conferred by statute on the Minister personally: at [114]. As to the executive power of departmental officers, his Honour reached the following conclusion (at [144]):

…if the departmental official's action is said to exceed the lawful liberty of officials to advise and assist the Minister, and to trespass (in substance) into an unlawful exercise of the Minister's personal liberty, then a person with a sufficiently special interest in the remedy sought can obtain a declaration as to the legality of that action.

42    His Honour summarised the characteristics of the Ministerial instruction that was under consideration in the following way (at [157]):

In summary, the 2016 Ministerial Instructions moved away from a model in which almost all cases were brought to the Minister's attention with the only exception being those repeat applications that fell outside the ambit of circumstances that the Minister wanted to consider. Rather, the 2016 model became one in which no applications would be brought to the attention of the Minister unless the application met broad evaluative criteria to the satisfaction of the departmental officials.

43    His Honour then concluded (at [171]):

The exercise by a departmental official of the broad discretion in the 2016 Ministerial Instructions to refuse to refer a request to the Minister amounted, in substance, to the exercise by the official of the Minister's personal liberty. The officials' decisions not to refer Mr Davis' and DCM20's requests to the Minister were therefore decisions which amounted, in substance, to the exercise of the Minister's personal liberty to consider (or not to consider) the requests.

44    Jagot J concluded (at [254]) that the Minister's instructions 'impermissibly required the departmental officers to decide matters within the zone of exclusive Ministerial personal decision-making power'. That was 'because the instructions required the departmental officers to decide that the request of each appellant did not meet certain evaluative "public interest" criteria and, without referral to the Minister, to finalise the request'. On that basis: 'the departmental officers acted impermissibly'.

45    Steward J dissented from the views of the other members of the Court: at [196].

46    Ultimately, the High Court granted declaratory relief that decisions made in purported compliance with the Minister's instructions exceeded the executive power of the Commonwealth. Relief in those terms reflected the fact that procedural decisions had been made by departmental officers not to refer the requests of the two appellants to the Minister.

47    Subsequently, in GMS24 v Commonwealth [2025] FCAFC 170; (2025) 313 FCR 152, issues arose as to the duties of departmental officers where a request was made for the Minister to exercise a personal non-compellable power conferred by the Migration Act but the Ministerial instruction that had been given was invalid.

48    Kennett J found that a departmental officer who became aware of a request had no power not to bring it to the attention of the Minister because, following Davis, any such decision would exceed the power of the Commonwealth. However, his Honour found that the applicants in that proceeding had failed to discharge their onus to establish that there was a failure to refer their relevant requests to the Minister or that the Minister was not personally aware of the request: at [71]-[74]. That conclusion was reached in circumstances where there was evidence that the requests were the subject of submissions by departmental officers to the offices of the responsible Ministers.

49    There was also consideration of the nature and extent of an alleged duty on the part of departmental officers to refer requests of which they were aware to the Minister. Without deciding that aspect, his Honour concluded that any such duty did not require more than was done by the officers in the circumstances of the case: at [51]-[56].

50    In their joint reasons, Horan and Bennett JJ identified a number of matters concerning the state of the evidence that might bear upon whether the applicants had discharged their onus on any factual question as to whether a Minister had been made personally aware of the applicants' requests: at [151]-[155]. However, their Honours found it unnecessary to reach a concluded view on the evidentiary issues on the basis of a legal conclusion (at [156]) that:

…it is sufficient to discharge any duty arising from s 46A that the Secretary (and officers of the Department) have taken steps to provide the requests to the Minister’s office or, at least, to inform the Minister’s office of the existence of the requests.

51    Their Honours concluded that the reasoning in Davis was to the effect that both the decisions made by the departmental officers in purported compliance with the Ministerial instruction under consideration in that case and the Ministerial instruction itself exceeded executive power: at [192]. They referred at [193] to the reasoning of Gageler CJ, Gordon, Gleeson and Jagot JJ in Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 at [2] to the effect that there was a zone of exclusive Ministerial personal decision-making power into which no other executive officer of the Commonwealth may transgress. Their Honours then reasoned as follows (at [199]-[200]) that it 'would seem to follow inexorably from Davis that:

…an officer of the Department cannot 'finalise' a request for Ministerial intervention without bringing the request to the attention of the Minister, unless the Minister has given a lawful instruction that he or she does not wish to consider that request or that class of requests by reference to objective characteristics (as opposed to an evaluation of public interest considerations). To do so would foreclose or preclude the Minister from personally considering whether to exercise the power by making a procedural decision or substantive decision, and would trespass on the exclusivity of the Minister’s personal power or liberty.

Further, if the Department cannot itself finalise a Ministerial intervention request, it cannot bring about the same practical result by inaction, such as by allowing the request to lie unattended within the Department without taking any steps to bring it to the Minister’s attention.

52    This was said to give rise to a duty to bring a request to the Minister's attention in the absence of any lawful authority not to do so: at [200]-[204]. Ultimately, their Honours concluded that, on the evidence, the burden of the duty to bring requests to the attention of the Minister had been discharged: at [216]-[219]. That was because submissions had been provided to the office of the Minister.

53    The High Court's decision in Minister for Immigration and Multicultural Affairs v MZAPC was concerned with the extent of the Federal Court's power to grant injunctive relief in cases like the present. In their joint reasons, Gageler CJ, Gordon, Gleeson and Jagot JJ determined that this 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': at [4]. This was a conclusion based upon the extent of the Court's power to protect the integrity of its own processes. Their Honours concluded that 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'.

54    Turning to the facts at hand, as matters presently stand, the Request was made by the applicant to the Minister's Department. It was made at the invitation of the Minister. If the matter proceeds it appears that it will be necessary to resolve a factual issue as to whether the Request was received by the Department and hence an issue as to whether there is any departmental officer who was aware of the Request. By his submissions, the applicant foreshadows applications for disclosure and orders preserving available evidence. That is to say, he seeks to pursue interlocutory steps to support his case. Therefore, he is not in the same position as the applicants in GMS24 who failed to take any steps of that kind prior to final hearing.

55    It would be logical for the Request to have been made at the time alleged by the applicant given the invitation extended to him at that time and the procedural decision not to consider his earlier request.

56    Significantly, the Request does not appear to be a repeat request for the purposes of the Ministerial Instruction because the previous request that might be said to raise the same matters was finalised by the procedural decision made on 4 September 2025 (being an instance that is specified in the Ministerial Instruction as not being a repeat request). Arguably, the matters raised in the Request meet the New Information Criterion. If so, they are matters that must be the subject of a full submission to the Minister and which have not yet been considered by the Minister.

57    On the basis of the reasoning in GMS24, in the absence of any valid instruction from the Minister, a departmental officer who is aware of a request and does not deal with that request exceeds that officer's executive power. The Court will grant declaratory relief to that effect in the expectation that the law as declared will be given effect. Also, the Court will grant an injunction to protect the availability of that relief even though there may be, in the circumstances, a statutory duty imposed by other provisions of the Migration Act to remove the person concerned from Australia. Whether it will do so will depend upon matters that bear upon the balance of convenience.

58    By parity of reasoning, where there is a valid instruction from the Minister, a departmental officer who fails to deal with a request in accordance with a Ministerial Instruction exceeds that officer's executive power. Arguably, the existence of the instruction means that a failure to conform with the instruction through oversight or neglect will also be an excess of executive power. The reasoning in GSM24 was concerned with whether there was a duty to refer absent any instructions. In the present case, instructions have been given and it seems to me that there is a serious question whether an officer who through oversight or neglect does not bring a request to the attention of the Minister as instructed exceeds the officer's executive power.

59    At this stage, the evidence from the Minister concerning the Request is confined to a statement made based upon an inquiry made of a lawyer at the Department. The state of awareness within the Department of the request is a matter peculiarly within the knowledge of its officers. There is no suggestion that there has been any detailed investigation. There is no evidence of the system or procedures that are followed in relation to requests. I mean no criticism by that observation. The issue has only recently been joined.

60    However, in all those circumstances, subject to consideration of Issue (5), I am persuaded that there is a serious question to be tried as to Claim 1.

Issue (5): If yes to Issue (4), what is the significance of s 197E?

61    Both the joint reasons of Horan and Bennett JJ and the separate reasons of Kennett J considered the significance of the terms of s 197E of the Migration Act for the relief that might be available in the event of a demonstrated excess of executive power in relation to a request for Ministerial intervention. It was inserted by the Migration Amendment (Removal and Other Measures) Act 2024 (Cth), which commenced operation on 5 December 2024 - that is, after the decision in Davis.

62    Kennett J reasoned at [86] that 'the duty to remove arises, and must be carried out "as soon as reasonably practicable", irrespective of whether the Minister has been asked to exercise or consider exercising one of the dispensing provisions'. Further, the terms of s 197E 'stand in the way of the non-removal and continued detention of a non-citizen being justified on the footing that inquiries and assessments leading to a possible exercise of [the Minister's power to intervene] are in train'. Consequently, in his Honour's view any scope for removal to be delayed in order to accommodate consideration of a request for Ministerial intervention must now be found in the provisions within s 197E that provide for the Minister to suspend the duty to remove while the Minister considers whether to exercise his personal intervention power.

63    Horan and Bennett JJ rejected submissions to the effect that there was some form of anterior duty to bring a request to the attention of the Minister that meant that it will not be reasonably practicable to remove a non-citizen before that duty has been performed or discharged: at [231]-[232]. However, their Honours then said (at [233]):

Nevertheless, s 197E does not necessarily remove the Court’s power to grant interlocutory relief in accordance with the principles considered by the High Court in MIMA v MZAPC. If an applicant claims that officers of the Commonwealth have failed to bring his or her request for Ministerial intervention to the attention of the Minister without lawful authority or have otherwise acted in excess of executive power, and the Court considers it appropriate to grant an injunction to prevent the applicant’s removal from Australia in order to preserve the subject matter and utility of the proceeding, the removal duty under s 198 can accommodate compliance with such an injunction: MIMA v MZAPC at [4], [37] (Gageler CJ, Gordon, Gleeson and Jagot JJ).

64    It follows that a claim that raises a serious question to be tried as to whether departmental officers have exceeded their executive authority in dealing with the Request may form the basis upon which an interlocutory injunction restraining the applicant's removal from Australia may be granted.

Issue (6): If there is a serious question to be tried, does the balance of convenience favour the grant of an interlocutory injunction? In particular, what is the significance of the statutory duty to remove as soon as reasonably practicable as expressed in s 198 and s 197E for the balancing exercise?

65    On the applicant's evidence, there will be very serious consequences for the applicant if his application is refused. He has deposed to various matters that are said to have occurred since his protection visa was upheld. If his evidence as to those matters was to be accepted, then the evidence would provide a serious basis for concerns as to his physical safety if he were to be removed as planned. He also makes claims as to the consequences of the recent illness of the mother of his two children for their financial and emotional support. The applicant also raises an additional matter, not referred to in his Request, that he says will expose him to serious risks including as to his personal safety if he were to be returned to Nigeria. All these matters weigh significantly in favour of the grant of relief.

66    In addition, if the applicant is removed from Australia, then the subject matter of his proceedings will be lost. The Request seeks the exercise of a power by the Minister to allow the applicant to make a further application for a protection visa on the basis of the new basis for claims of serious harm if he were to be refouled to Nigeria. He is only able to apply for a visa if he is in Australia. He will lose the opportunity to pursue his Request and the possibility that he may be able to seek and obtain a protection visa.

67    As to the statutory duty to remove and the terms of s 197E, these are matters that must weigh against the grant of relief. As has been explained, on the reasoning of Horan and Bennett JJ in GMS24, those provisions do not exclude the power to grant injunctive relief to preserve the subject matter of a claim to the effect that executive power has been exceeded in relation to a request for Ministerial intervention. Nevertheless, the terms of s 197E reinforce the fact that a request does not suspend the statutory requirement to remove. It is a matter that bears upon whether to grant relief. In my view, the extent to which it weighs in the balance of convenience depends upon the strength of the applicant's claim and the extent to which the matters raised in a request have been previously raised or addressed in rejecting a previous application for a protection visa.

68    In the present case, on the evidence as it presently stands, there are aspects of the Request that are significant. First, it raises matters within the New Information Criterion that have occurred since the applicant's protection visa application was refused and which have not previously been considered by the Minister. Second, the Request was made after the procedural decision by the Minister that was made consequent upon the decision in Davis. That decision contemplated that individuals like the applicant would be invited to make a further request which would be dealt with in accordance with the Ministerial Instruction. On the evidence, such a request has been made but has not been dealt with in accordance with the Ministerial Direction. Consequently, this is not an instance where there has been delay in raising matters by way of request or where matters have only been raised after notification of intention to remove or the matters the subject of the request are repeat requests. If the applicant's factual case is accepted, the course contemplated by the Minister's own instruction has not been carried out in relation to the Request.

69    The applicant was given a notice of intention to remove on 2 September 2026. In circumstances where he is in detention and is not legally represented there has not been undue delay in bringing the application.

70    On the evidence there will be a financial consequence for the Commonwealth if the arrangements for the removal of the applicant are restrained by injunction. However, it is a modest consequence when weighed against the seriousness of the consequences for the applicant.

71    Although there is a public interest in performance of the statutory duty to remove, there is also a public interest in ensuring that any such removal accords with Australia's international obligations when it comes to the return of people to a country where there is a real risk that they will suffer significant harm. In the circumstances of this case where there is new evidence advanced by an applicant to support a claim that there is such a risk then there is a public interest in the Request being dealt with in accordance with the Ministerial Instruction.

72    The applicant proffered an undertaking as to damages, disclosing his impecuniosity when it came to supporting the undertaking. Having regard to the nature of the application concerning as it does whether he might have a pathway to making a further application for a protection visa and the fact that he is presently in immigration detention, I am persuaded that this is an appropriate case where relief may be granted without an undertaking as to damages.

73    Having regard to all these matters and taking account of the public interest in the performance of the statutory obligation to remove as soon as practicable where the terms of s 198 apply, I am persuaded that there should be an injunction until further order restraining the removal of the applicant.

Issue (2): What is the test to be applied in assessing the merits of Claim 1 in considering whether to grant relief pending the outcome of the special leave application (and the appeal if leave is granted)?

Issue (3): Having regard to the answer to (2), does Claim 1 have sufficient merit to support the grant of an interlocutory injunction?

74    Having regard to the conclusions I have reached as to Issues (4) and (5), it is not necessary to reach a conclusion as to Issues (2) and (3). In the circumstances, I will deal with them briefly.

75    The principles in Jennings Construction are applied in this Court when an application is made for a stay of an order of this Court pending an application for special leave: Director, Professional Services Review v Yoong (No 2) [2025] FCAFC 10; (2025) 311 FCR 340 at [26] (O'Bryan, Rofe and Horan JJ). In Jennings Construction the jurisdiction to grant a stay pending an application for special leave to appeal was described as 'extraordinary'. Further, it was said (at 685):

In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider - first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

76    In Mercanti v Mercanti [2017] HCA 1, the decision relied upon by the applicant, Kiefel J, sitting as a single judge, granted an injunction to preserve the subject matter of an application for special leave to appeal. In doing so, her Honour applied Jennings Construction. Her Honour's 'not insubstantial' language should be understood accordingly. Her Honour should not be taken to be establishing some different approach to that expressed in Jennings Construction.

77    The applicant's affidavit included as an annexure his application for special leave to appeal. Although the application proposes four grounds of appeal, the submissions in support of the application focus upon the reasoning on appeal in this Court concerning what is described as 'the core retaliation claim'. The issue that was before this Court on the applicant's appeal from the Circuit Court was whether there was error because there should have been a finding by the Circuit Court that there was a failure by the Tribunal to properly engage with the claim. On the applicant's appeal, the nature of the retaliation claim was identified: EFT24 v Minister for Immigration and Citizenship [2026] FCA 581 at [3]. As to that claim, it was concluded that the Tribunal identified the retaliation claim, addressed aspects of credibility of the applicant's account, made findings of fact and reached conclusions based on those findings: EFT24 at [32]. The submissions in support of the special leave application repeat the nature of the retaliation claim. They do not explain why the approach of the judge hearing the appeal from the Circuit Court was in error and do not expose why the case is one that might be the grant of an application for special leave. In those circumstances, it could not be said that there is a substantial prospect of a grant of special leave.

78    For those reasons, Issues (2) and (3) must be determined adversely to the applicant.

Issue (1): Should the Court receive the applicant's additional affidavit and submissions on the interlocutory application?

79    In circumstances where I am persuaded that there should be an injunction to restrain the applicant's removal, the application for leave to file the additional affidavit and submissions falls away.

Issue (7): The terms of relief

80    For the reasons I have given, I am persuaded that there should be an injunction restraining the applicant's removal from Australia. The order should be expressed to apply until the determination of the proceedings or further order.

81    The applicant also sought an order restricting access to his affidavits filed in these proceedings on the basis that the contents of the affidavits if known generally would aggravate the risk to his safety. Although the order sought does not extend to the submissions, the same would apply to their contents.

82    As the applicant is identified by pseudonym and the concern is with access by third parties to the file, I will make an order that a person who is not a party to the proceedings may not inspect the affidavits or submissions filed in these proceedings without an order of a judge.

83    The applicant sought an order that a certificate be issued for legal assistance. A party is not entitled to apply for a referral. It is a matter for the Court to determine whether a referral certificate should be issued. As to the approach to be adopted, see my reasons in AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 99. I am persuaded that a referral certificate should be issued.

84    The costs of the application should be reserved. As has been noted, the applicant conducted the proceedings on his own behalf. It is appropriate for any order as to costs to be informed by the subsequent course of the proceedings.

Complaints about travel documents

85    The applicant raised complaints as to the steps that had been taken to obtain travel documents for his removal. I am unable to identify any claim arising from these matters that might be a legal basis for relief of the kind that the applicant seeks.

Associate:

Dated:    21 September 2026