Federal Court of Australia

IEG25 v Minister for Immigration and Citizenship [2026] FCA 1400

ORDERS

ON THE APPLICANT BY HIS COUNSEL PROFFERING THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT:

1.    The respondents by their officers, delegates, servants or agents or otherwise be restrained from removing the applicant involuntarily from Australia to Sri Lanka until the final determination of the consolidated proceedings in NSD 1695 of 2026.

2.    Costs of the interlocutory application be reserved.

3.    Liberty to apply.

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

REASONS FOR JUDGMENT

PERRAM J:

1    The applicant is currently being held in immigration detention at the Villawood Immigration Detention Centre (‘Villawood’). He had been scheduled to be removed from Australia to Sri Lanka on 22 September 2026. He applied urgently for an interlocutory injunction restraining the Minister for Immigration and Citizenship (‘the Minister’) and the Commonwealth from removing him.

2    On the application the applicant was represented by Ms Bones of junior counsel who appeared at short notice and pro bono. The Court records its gratitude to counsel for so appearing. The respondents were represented by Mr Hall of junior counsel. Both sides were very well served by their counsel.

3    The case has a complex procedural history. Most of that history is set out in the reasons of Cleary J in IEG25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 1779 which were given on 10 September 2026. The following day the Commonwealth attempted to remove the applicant from Australia but he attempted to commit suicide at the airport and the removal did not proceed. On the same day his partner filed a notice of appeal from Judge Cleary’s order. The applicant was hospitalised at the Royal Prince Alfred Hospital from 11 to 13 September 2026 after which he was returned to Villawood. On 16 September 2026 he was notified by the Minister’s solicitors that he would be removed to Sri Lanka on 22 September 2026. The same day he filed an interlocutory application in the appeal seeking to restrain his departure.

4    There are significant obstacles confronting the appeal from Judge Cleary which need not be set out here but which do explain what happened next.

5    On Monday 21 September 2026, the applicant filed with this Court an originating application seeking habeas corpus and seeking an interlocutory injunction restraining his removal. At about the same time he filed a fresh proceeding in the Federal Circuit and Family Court of Australia (‘Circuit Court’) seeking to restrain his removal. Following consultation between the Chief Justices of the Circuit Court and this Court I made an order removing the proceeding before that Court into this Court. Ms Bones accepted that now that that proceeding was before this Court it would not be necessary to proceed on the interlocutory applications in the habeas or appeal proceedings.

6    Ms Bones submitted that an interlocutory injunction should be granted for three basic reasons:

(a)    The applicant was an unauthorised maritime arrival and could not be removed to Sri Lanka but had to be removed to a regional processing country: s 198AD(2) Migration Act 1958 (Cth). There was no evidence that it was reasonably practicable to remove the applicant to a regional processing country.

(b)    The applicant had an unresolved application for a bridging visa which had not yet been determined. He had also made an application to the Minister to permit him to apply for a partner’s visa which had not been determined.

(c)    It was not reasonably practicable to remove the applicant to Sri Lanka (or anywhere else) because he was medically unfit to be removed.

Ground One

7    The applicant is an unauthorised maritime arrival. Section 198AD(2) requires such a person to be removed to a regional processing country. It was common ground that the relevant regional processing country was Nauru. Section 198(11) provides that s 198 does not apply if s 198AD does apply; i.e. one cannot be removed under both provisions. However, s 198AD does not apply if the regional processing country has ‘advised an officer, in writing, that the country will not accept the unauthorised maritime arrival’: s 198AG.

8    Mr Hall tendered Exhibit 1 which was a letter from the Secretary for Multicultural Affairs for Nauru to the Department of Home Affairs dated 23 January 2026. It is in these terms (noting redacted text has been omitted and the applicant’s identifying details have been replaced with his pseudonym):

Dear A/g Assistant Secretary Smith,

RE: POTENTIAL TRANSFERS

I write to you on the above captioned subject.

I would like to formally inform your office that after consideration for the transfer of these individuals listed below, The Government of Nauru has not approved the request.

Should you require any further information or wish to discuss further, please do not hesitate to contact me.

9    Ms Bones submitted that there was an arguable case that this letter did not satisfy the requirements of s 198AG. Respectfully, I do not agree. It is clear that the letter is a response to a transfer request made by the Commonwealth and that the request has been refused. This constitutes Nauru indicating that it will not accept the applicant. Section 198AG is engaged with the consequence that s 198AD is not. The first ground fails.

Ground Two

10    I accept that the applicant has on foot a bridging visa application which has not been determined and that he has requested the Minister to permit him to apply for a partner’s visa. The evidence shows in relation to the latter that the Minister has taken no steps of any kind in relation to it. Section 198(5) provides:

(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.

11    Mr Hall submits that this provision renders the applicant’s bridging visa application irrelevant. Ms Bones submits that s 198(5) is just one of a number of paths to removal and that it was not the relevant path. However, the fact is that the applicant is a detainee, has not applied for a substantive visa in accordance with s 195(1) and has not applied for revocation under s 137K. The provision is therefore engaged. The same approach to s 198(5) has been taken in the Circuit Court: see BMW23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1679 at [32]-[34] and Telefoni v Minister for Immigration and Citizenship [2025] FedCFamC2G 1474 at [40]-[44]. The fact that the applicant’s bridging visa application remains unresolved is therefore not capable of affecting the removal obligation under s 198. I do not accept that the applicant has an arguable case about this.

12    I reach the same conclusion about his request for Ministerial intervention. Section 197E provides:

(1) For the purposes of section 198, it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unlawful non‑citizen.

(2) To avoid doubt:

(a) an officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the unlawful non‑citizen; and

(b) the fact that the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unlawful non‑citizen is irrelevant to whether or not the removal of the unlawful non‑citizen is reasonably practicable for the purposes of section 198.

(3) Subsection (1) applies whether a request is made by:

(a) the unlawful non‑citizen; or

(b) an officer of the Department; or

(c) any other person.

(4) Subsection (1) applies whether or not a request has been drawn to the Minister’s attention

Temporary suspension of duty to remove unlawful non‑citizens

(5) Despite subsection (1), if the Minister decides to consider whether to exercise a Ministerial intervention power (whether on request or otherwise) in relation to an unlawful non‑citizen, section 198 does not require or authorise an officer to remove the non‑citizen from Australia during the period covered by subsection (6).

Note: Despite this subsection, an unlawful non‑citizen who asks the Minister, in writing, to be removed, must be removed under subsection 198(1) (see subsection (11) of this section).

Period during which duty to remove is suspended

(6) For the purposes of subsection (5), the period is 6 months starting on the day (the start day) the Minister decides to consider whether to exercise the Ministerial intervention power in relation to the unlawful non‑citizen, unless:

(a) before the end of that 6 month period, the unlawful non‑citizen has agreed, in writing, to a day occurring after the end of that 6 month period nominated, in writing, by the Minister—in which case the period ends on the agreed day (subject to paragraph (b)); or

(b) the period ends earlier under subsection (7).

(7) For the purposes of paragraph (6)(b), the period ends at the earliest of the following times:

(a) the end of the day the Minister decides not to exercise the Ministerial intervention power in relation to the unlawful non‑citizen;

(b) the end of the day the Minister decides to stop considering whether to exercise the power in relation to the non‑citizen;

(c) if the Minister exercises the power in relation to the non‑citizen, and subsection (8) specifies a day—the end of that day;

(d) if the Minister exercises the power in relation to the non‑citizen but the exercise does not result in the non‑citizen being able to make a visa application—the end of the day that the Minister exercises the power.

(8) For the purposes of paragraph (7)(c), this subsection specifies the following days:

(a) in a case where, as a consequence of the exercise of the Ministerial intervention power, the unlawful non‑citizen may make a visa application within a specified period—the last day of the period in which the non‑citizen could make the visa application;

(b) in any other case where, as a consequence of the exercise of the power, the non‑citizen may make a visa application—whichever of the following days occurs first:

(i) the last day of the period determined by the Minister in which the non‑citizen could make the visa application;

(ii) the day that is 3 months after the Minister exercises the power.

Working out start day for certain requests

(9) If the Minister decides to consider whether to exercise a Ministerial intervention power in relation to a particular category of requests for such exercise by unlawful non‑citizens, then, for the purposes of subsection (6), the start day, in relation to a particular unlawful non‑citizen, is the day that the non‑citizen’s request is received, in writing, by the Minister.

Scope of suspension of duty to remove unlawful non‑citizen

(10) To avoid doubt, subsection (5) of this section:

(a) prevents the removal of an unlawful non‑citizen during the period covered by subsection (6); but

(b) does not prevent any other action being taken, or thing being done, during that period to facilitate or otherwise prepare for the eventual removal of the non‑citizen after the period ends.

Example: The Minister could give the unlawful non‑citizen a removal pathway direction under section 199C during the period covered by subsection (6).

Unlawful non‑citizen must be removed at non‑citizen’s request

(11) Despite subsection (5), an officer is required and authorised to remove an unlawful non‑citizen who asks the Minister, in writing, to be so removed under subsection 198(1).

13    His request to the Minister therefore has no impact on the removal obligation.

Ground Three

14    The applicant submits that the medical evidence before the Court shows that he has an arguable case that he is medically unfit to be removed. The respondent submits that this is not a question for the Court but instead for the official carrying out the removal under s 198. The various obligations of removal in s 198 are all couched in terms that ‘an officer must remove as soon as reasonably practicable an unlawful non-citizen ...’. It is not immediately obvious that this statutory duty is associated with any anterior administrative decision about whether removal is reasonably practicable. Presumably that decision would consist entirely of the formation of an opinion that removal was reasonably necessary. On this view, once that opinion was formed s 198 would then impose the removal duty on the officer who formed it. Some interesting issues about whether the officers who do the actual removing have that opinion may, on this view, arise.

15    A different reading of s 198 is that no formation of such an opinion is necessary. Whether removal is reasonably practicable on this view is an objective circumstance and once it exists all officers are obliged to act.

16    The latter view is sometimes said to mean that the fact involved (here reasonable practicability of removal) is a jurisdictional fact. If so this means that a judicial review court can make the finding for itself.

17    There is a presumption in statutory interpretation that generally statutes which refer to factual states of affairs are not read as specifying jurisdictional facts: Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 465-466 per Black CJ.

18    The principle has been applied in this Court to s 198: Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368; 155 FCR 465 at [40]-[43] per Besanko J; HBMH v Commonwealth of Australia (No 2) [2024] FCA 8 at [72]-[75] per Feutrill J; AHF18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 660 at [9(g)], [10] per Bromwich J.

19    Ms Bones submitted that this line of cases was inconsistent with recent High Court authority. The clearest statement appears in TCXM v Minister for Immigration and Citizenship [2026] HCA 13; 100 ALJR 794 at [40]-[42] per Gageler CJ, Gleeson, Jagot and Beech-Jones JJ (‘TCXM’) (citations omitted):

[40] Hence, as was explained in the joint reasons in ASF17, for removal to be “practicable”, “there must first and foremost be identified a country to which [the non-citizen] might be removed” and removal to that country must be permissible under the Migration Act having regard to s 197C(3). Where a country is identified to which a non-citizen might permissibly be removed consistently with s 197C(3), as ASF17 and MZAPC combine to confirm, whether removal to that country is “reasonably practicable” turns on an objective assessment of the steps legally and practically available to be taken by an officer to result in the non-citizen being transported to and received into that country.

[41] A medical condition which renders a non-citizen unfit to travel to a country can result in removal of the non-citizen to that country being objectively assessed to be not reasonably practicable. Circumstances within a country, such as an outbreak of disease or a natural disaster or civil unrest, can also bear on an objective assessment of the practicability of removal to that country insofar as those circumstances can impact on the practical and legal capacity for the non-citizen to be transported to and received into that country.

[42] The scope of the objective assessment mandated by s 198 of the Migration Act as to whether to “remove” a non-citizen is “reasonably practicable” does not, however, encompass an assessment of what will or might be expected to happen to the non-citizen once received into the country to which the non-citizen is removed, once the practical and legal capacity for the non-citizen to be removed to and received into that country is established. There is no novelty in that proposition, which has hitherto been regarded as settled at least since the decision of the Full Court of the Federal Court in NATB, which was referred to with approval in MZAPC and by which the primary judge correctly considered himself to be bound in the present case.

20    The litigation in TCXM appears to have been conducted on the assumption that reasonable practicability was a jurisdictional fact. I do not read TCXM as holding that reasonable practicability is a jurisdictional fact but I do accept that it appears to be inconsistent with a conclusion that it is not a jurisdictional fact.

21    Mr Hall emphasised that the statement in [40] that an objective assessment was called for did not answer the question of who was to carry out the objective assessment. There is force in this but I nevertheless accept that TCXM means that it is arguable that s 198(6) does specify a jurisdictional fact.

22    I therefore conclude that it is arguable that it is open to the applicant to contend that the objective circumstances show he is not fit to be deported.

23    On the last occasion an attempt was made to remove the applicant to Sri Lanka (11 September 2026) he attempted to commit suicide at the airport. He was then admitted to the Royal Prince Alfred Hospital where he was scheduled under the Mental Health Act 2007 (NSW). The discharge papers say this:

Progress During Admission:

On admission to PMBC, noted inadequately treated PTSD and depressive symptoms with psychotherapy alone, given escalating risk and self-harm. Given his acute risk and inability to safety plan at the time, he was scheduled under the MHA and commenced on mirtazapine 15mg, with plans to up-titrate to 30mg if tolerating.

Seen on 09/13 by VMO Psychiatrist Dr Virk, noting that despite depressive and trauma-related symptoms, there is no evidence of psychosis, mania, or severe behavioural disorganization or another acute psychiatric syndrome requiring inpatient treatment.

While his depression and PTSD warrant treatment, the decision was made that this could be more appropriately done in the Villawood Detention Centre while receiving input from the Detention Centre psychiatrist, rather than in an inpatient unit. The predominant driver of his suicidality was related to external stressors that would not be ameliorated by ongoing psychiatric admission, and while ongoing admission may temporarily defer exposure to this stressor, it is unlikely to produce a durable reduction in risk and may inadvertently reinforce suicidal behaviour as a means of delaying/avoiding deportation .

Mental state on discharge:

Sri Lankan male, appears stated age, wearing clean pyjamas. Forthcoming and polite in engagement. Good eye contact. No psychomotor disturbance or hypervigilance ..

Speech spontaneous, normal rate, rhythm , volume, tone .

Mood euthymic, flat affect

Nil formal thought disorder. Denies delusional ideas or current SI/TOSH/TOHO though notes suicidal ideation contingent on his deportation without current obvious means or intent

Not responding to internal stimuli

Alert, attentive

Plan:

Lift schedule

Discharge - nil further indication for acute inpatient care

Continue mirtazapine 15mg nocte for 2 more days and then increase to 30mg nocte

Suggest to the detention centre:

- increased observations, particularly after notifying him of any adverse immigration decisions

- ensure that she is in a safe environment where access to ligatures, medications, sharps and other readily available means of self-harm is minimised

- medication should be administered under supervision to avoid stockpiling in future

- regular mental health review with clinicians at Villawood Detention Centre - continue with psychology and medical follow up there

Health Status

Formulation / Clinical Impression

Intentional overdose with suicidal intent occurring in direct response to imminent deportation, representing an acute behavioural response to a specific external stressor, on the background of PTSD and depression occurring in the broader context of protracted visa issues, detention, separation from his partner and impending deportation

Ongoing risk remains contingent on these circumstances but there is no further indication for acute inpatient psychiatric care at this time.

Add and Include Diagnosis

suicidal ideation

Major depressive disorder

Post-traumatic stress disorder

24    The Minister relied on a document created on 15 September 2026 entitled ‘Fit for travel assessment’. The document is as follows (noting the applicant’s name has been replaced with his pseudonym and other personal information has been omitted):

Date Created: 15/09/2026

Fit For Travel Assessment

Detainee Information

Fitness to Travel

Sign Off

Assessment completed by: 005W20000010neTIAQ

25    It will be noted from Q6 that the nurse who completed the form is not the nurse who examined the applicant on 15 September 2026 and that the applicant has not been seen by a doctor since 11 February 2026.

26    There is a reasonably arguable case from the discharge papers at Royal Prince Alfred Hospital that the applicant presents as a suicide risk if an attempt is made to remove him. This is related to inadequately treated PTSD and the stressor constituted by removing him to a place where he believes he will be tortured. It is true that the applicant appears to have told a counsellor that he would not do it again but that is inconsistent with the discharge report which suggests that the stressors may well have that effect.

27    I therefore conclude that the applicant has a reasonably arguable case that his removal is not reasonably practicable.

28    Turning to the balance of convenience, Mr Hall submitted that several matters weighed against the grant of an injunction:

(a)    disruption of the statutory scheme of removal;

(b)    costs of ongoing detention; and

(c)    rescheduling of removal.

29    I am prepared to accept all of these matters for the sake of argument. Against them are:

(a)    the fact that the applicant might die; and

(b)    the prejudice constituted by involuntary removal to Sri Lanka.

30    In my view, the balance of convenience favours the grant of injunctive relief.

31    It was for these reasons that last night, on the usual undertaking as to damages, I granted the applicant the interlocutory injunction he sought.

Associate:

Dated:    22 September 2026