Federal Court of Australia

FGS20 v Minister for Immigration and Citizenship [2026] FCA 1476

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    The applicant pay the first respondent’s costs as assessed or agreed

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for declaratory relief made against the Minister for Immigration and Citizenship and the Secretary of the Department of Home Affairs.

2    The applicant is a citizen of Afghanistan. On 12 October 2013, the applicant first arrived in Australia and was subsequently transferred to a regional processing facility in Papua New Guinea. On 18 July 2019, the applicant was transferred from Papua New Guinea to Australia for medical treatment. The applicant was one of a cohort of individuals with health issues transferred from offshore immigration detention for urgent medical treatment, known as ‘medevac transferees’ or the ‘medevac cohort’.

3    This proceeding was initiated by way of an originating application and statement of claim dated 20 August 2024. The original pleadings were amended by way of an amended originating application, filed by leave of the Court on 29 July 2026. By that application, the applicant seeks a declaration that:

the Second Respondent [the Secretary] failed to bring the Applicant’s s 46B request, lodged on or about 15 January 2024, to the [attention of the] Minister, the Minister’s office or the Minister’s advisers through the Minister’s chosen channels within a reasonable time.

4    The relief set out in the amended originating application is sought pursuant to s 39B of the Judiciary Act 1903 (Cth) in regard to matters arising by the Migration Act 1958 (Cth).

5    The proceeding was listed before me for hearing on 29 July 2026. I made orders after the conclusion of the hearing dismissing the application with costs, with reasons to follow. I did so because I was satisfied that the amended originating application filed 29 July 2026 had to be dismissed because of a fatal factual flaw in bringing it.

Legislative provisions

6    Section 46A of the Migration Act bars unauthorised maritime arrivals from making a valid application for a visa:

46A Visa applications by unauthorised maritime arrivals

(1)    An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

(a)    is in Australia; and

(b)    either:

(i)    is an unlawful non-citizen; or

(ii)    holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.

7    The bar in s 46A(1) may be overcome by the discretion of the Minister as provided by s 46A(2):

46A Visa applications by unauthorised maritime arrivals

...

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.

8    Section 46A(2) is a non-compellable statutory discretion (s 46A(7)) and may only be exercised by the Minister personally (s 46A(3)).

9    Section 46B(1) bars ‘transitory persons’ from making a valid application for a visa. The bar similarly may be overcome by the non-compellable statutory discretion of the Minister acting personally, by operation of s 46B(2):

46B Visa applications by transitory persons

…

(2)     If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination

10    A ‘transitory person’ is defined by s 5 of the Migration Act to include a person who was taken to another country under repealed s 198A, or a person taken to a regional processing country under s 198AD.

Background

11    An overview of the circumstances giving rise to the applicant’s claim are succinctly summarised in the Minister’s submissions as follows (omitting footnotes), which have not been questioned:

[3]    The applicant first arrived in Australia as an unauthorised maritime arrival on 12 October 2013. In accordance with the duty in s 198AD of the Migration Act 1958 (Cth) (Act), the applicant was transferred to a regional processing country, namely Papua New Guinea.

[4]    On 18 July 2019, the applicant was transferred back to Australia for a temporary purpose, namely medical treatment. By reason of his transfer back to Australia, he is a ‘transitory person’. On arrival back in Australia, the applicant was detained under s 189 of the Act.

[5]    On 13 November 2021, the applicant was released from immigration detention as the holder of a Bridging Visa E (BVE). He has remained in the community as the holder of a BVE since that time.

[6]    The applicant seeks to apply for a substantive visa (ie. not just a bridging visa such as a BVE). The applicant accepts that he is both an unlawful maritime arrival and a transitory person (cf. Applicant’s Submissions at [20], [30]). The bar in s 46A(1) and s 46A(2) apply to him. Hence, in order to be able to make a valid application for a visa, the Minister would have to lift the bar in both s 46A(2) and s 46B(2).

[7]    On 15 January 2024, the applicant made a request for the Minister to exercise his personal powers under s 46A and s 46B of the Act, so that he may apply for a visa (respectively, the s 46A Request and the s 46B Request).

Chronology of the ministerial intervention requests

12    The applicant is both an unauthorised maritime arrival and a transitory person for the purposes of the Migration Act. On 15 January 2024, the applicant wrote directly to the then Minister and requested ministerial intervention pursuant to ss 46A and 46B of the Migration Act. The applicant included information about his medical situation, visa status, family circumstances, and country of origin in that letter. The applicant sent the letter by post.

13    On 11 May 2024, the applicant uploaded the letter of 15 January 2024 to the online portal for applications of this nature and received a correspondence reference number for the upload. On the same day, the applicant emailed a copy of the letter to the Minister, agitating for a response.

14    On 6 June 2024, the applicant caused an email to be sent to the Department which referred to the prior correspondence and request and sought confirmation that the letter of 15 January 2024 had been received.

15    On 26 June 2024, the applicant caused a further email to be sent to the Department, again agitating for a response to the prior correspondence and request.

16    On 4 September 2025, the Minister prepared a Personal Procedural Decision (PPD), in which he decided not to consider making a substantive public interest decision under s 46A(2) in relation to any request which was made before the date of the PPD, had not yet been decided, and was not expressly excluded by addendum to the PPD. The applicant’s request was subject to the application of the PPD and was effectively finalised by it.

Arguments advanced by the parties

17    The arguments made by the applicant in written and oral submissions can broadly be summarised as follows, though noting I have had regard to the entirety of those submissions and arguments made therein:

(a)    The Secretary did not bring the applicant’s request to the sufficient attention of the Minister and was required to do so. There is authority for the proposition that the applicant’s ministerial intervention request to be brought to the attention of the Minister, or his advisors.

(b)    There was unreasonable delay in the ministerial intervention request being considered and finalised.

(c)    The applicant made his ministerial intervention request under both ss 46A and 46B. The PPD, which “finalised” the s 46A component of the applicant’s ministerial intervention request, cannot be said to have also finalised s 46B request.

(d)    The Secretary has failed to perform the limited duty to bring the applicant’s request to the Minister through the Minister’s channels within a reasonable time,

18    The respondents contend that the applicant’s argument is, in essence, futile because even if there were an obligation that the Secretary bring the request to the Minister’s sufficient attention within a reasonable time, the applicant has himself brought it directly to the Minister’s attention by sending it to the Minister directly, by post, online transmission, and email. The respondents do not concede that there is any obligation that the Secretary or the Department take certain steps to ensure the Minister has personally seen or read a submission. Nor do the respondents concede that there is an obligation to avoid unreasonable delay. However, irrespective of any finding on those two asserted obligations, the applicant’s arguments are defeated by the fact that he himself brought the request directly to the Minister’s attention, not via the Secretary.

19    The respondents also contend that even assuming there is an obligation to avoid unreasonable delay, which they do not concede, the delay was not unreasonable.

20    The respondents further contend that the applicant has failed to identify any foreseeable consequence to the proceeding, because if the relief sought were granted it would have no practical impact on the applicant’s visa status. The applicant is barred by the operation of both ss 46A and 46B, and, unless the ministerial discretion was exercised to lift both bars, the applicant is unable to apply for a valid visa. If the finalisation of the s 46A application were somehow changed by the result of this proceeding, the applicant’s position remains effectively unchanged because there is no practical impact on his ability to apply for a valid visa. Any change to his ability to apply for a valid visa would require the hypothetical possibility that the Minister revisit the decision imposed by the PPD.

Consideration

21    Section 46A(1) of the Migration Act renders any visa applied for by persons who are “unauthorised maritime arrivals” invalid. Section 46B(1) renders any visa applied for by persons who are “transitory persons” invalid. Each of those provisions operate as a bar to such persons applying for a visa. Sections 46A(2) and 46B(2) bestow on the Minister a personal power to lift those bars if satisfied that it is in the public interest to do so. A request to exercise personal powers such as those in ss 46A(2) and 46B(2), and in numerous other provisions of the Migration Act, is commonly referred to as a ministerial intervention request, because the Minister is being asked to intervene so that the ordinary operation of a provision is displaced.

22    When a ministerial intervention request is made to the Minister’s department, the Minister has no obligation to consider such a request. However, he or those who assist him must be made aware of its existence. If the Minister, so informed, decides to consider such a request, it is for the Minister alone to determine whether or not the public interest test is met. A corollary of the nature of the personal power and the limitation on its exercise by the Minister alone is that such a request must be brought to the attention of the Minister directly or to his office or advisers. Indeed, it has been found that, in the absence of a lawful instruction from the Minister that he does not wish to consider such a request or class of requests, there is a duty imposed on the Secretary to cause such a request to be conveyed in that way, so that the Minister is given an opportunity to make a personal procedural decision to consider exercising the power: GMS24 v Commonwealth [2025] FCAFC 170; 313 FCR 152 at [95]-[96], [159], [199] (Horan and Bennett JJ), applying Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 279 CLR 1.

23    The declaration sought by the applicant relies upon there having been being a failure to comply, within a reasonable time, with the duty imposed on the Secretary to take steps to ensure that the applicant’s ministerial intervention request in respect of both s 46A and s 46B was brought to the attention of the Minister, the Minister’s office, or the Minister’s advisers. While it may be doubted that there was any obligation imposed to do so within a reasonable time, especially as the applicant was not in immigration detention at the time that he made his ministerial intervention request (cf GMS24 at [208]), it is not necessary to decide that question. That is because the applicant did not make his ministerial intervention request to the Minister’s department, or indeed to any Commonwealth department, so as to have only been given to the Secretary. Rather, he posted a letter dated 15 May 2024 addressed to the then Minister by name, at his parliamentary post office box address. When the applicant did not get a response to his letter, on 11 May 2024, he uploaded the same letter to the Minister and got a confirmation receipt. It is clear that this was done by email because annexed to the applicant’s first affidavit is a copy of his follow up email, addressed to the then Minister’s parliamentary email address, together with the receipt sent some two hours later.

24    The postal rule in s 160 of the Evidence Act 1995 (Cth) contains a rebuttable presumption that the applicant’s letter to the then Minister was received at the address to which it was sent on the seventh working day after it was sent. The equivalent electronic communications rule in s 161 of the Evidence Act contains a rebuttable presumption that the applicant’s email to the then Minister was sent and received as it appears on its face. There was no evidence to rebut those presumptions. To the contrary, both the letter and the email were in evidence as attachments to the Ministerial submission dated 15 April 2026, so I readily infer had to have been passed on to the Minister’s department (rather than the other way around).

25    There is no room for any doubt that both the applicant’s letter, comprising his ministerial intervention request and the email attaching that letter, were sent and received as addressed. The applicant himself achieved what would otherwise have been a duty of the Secretary to achieve. Moreover, the applicant’s solicitor, who appeared for him on the hearing of this application, sent a further follow-up email to the Department of Home Affairs on 6 June 2024, forwarding the applicant’s email to the then Minister in person, and attaching the applicant’s letter addressed to the Minister in person, making it clear to the Department that the request had already been made directly to the Minister, and further proving that this had taken place.

26    There can be no doubt that the applicant’s ministerial intervention request had, by the applicant’s own conduct, already been brought to the attention of the Minister, the Minister’s office, or the Minister’s advisers. There was no scope for any duty to be imposed on the Secretary to duplicate that information providing exercise. It follows that no such duty was enlivened, and accordingly there could not be any failure to perform such a duty. The unavoidable conclusion I reached was there was no basis for granting the declaratory relief sought.

Conclusion

27    For the above reasons, after a short adjournment at the conclusion of the hearing, I dismissed the amended originating application with costs.

Associate:

Dated:    8 October 2026