Federal Court of Australia

Mwambwa v Minister for Immigration and Citizenship (No 2) [2026] FCA 1510

ORDERS

THE COURT ORDERS THAT:

1.    The injunction in paragraph 1 of the orders made on 14 August 2026, as extended by the orders made on 11 September 2026 and 29 September 2026, remains in force until 11.59 pm AWST on Tuesday 13 October 2026.

2.    The appellant’s application for an interlocutory injunction filed on 12 August 2026 is otherwise dismissed.

3.    By 4.00 pm AWST on 15 October 2026, the first respondent must file and serve an outline of written submissions of no more than 3 pages in length, addressing the issue of the costs of the application.

4.    By 4.00 pm AWST on 22 October 2026, the appellant must file and serve an outline of written submissions in response of no more than 3 pages in length.

5.    By 4.00 pm AWST on 29 October 2026, the first respondent must file and serve any outline of written submissions in reply of no more than 1 page in length, excluding header.

6.    The issue of the costs of the appellant’s injunction application will be determined on the papers.

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

REASONS FOR JUDGMENT

JACKSON J:

1    On 14 August 2026, after an urgent hearing (first hearing), I made orders restraining the removal of the appellant, Vincent Mwambwa, from Australia. The orders were made on an interim basis, pending fuller evidence and argument: Mwambwa v Minister for Immigration and Citizenship [2026] FCA 1217 (Mwambwa (No 1)).

2    On 29 September 2026 (second hearing), I heard the parties further as to whether that injunction should be extended to the time of judgment in this appeal. At the end of that hearing, the injunction was extended for a further two weeks, to permit the first respondent (Minister) to put on further evidence and written submissions about the likelihood that Mr Mwambwa would be removed from Australia after the conclusion of the appeal, even if it were successful. The Minister did subsequently put on further evidence and submissions, but Mr Mwambwa did not take up the opportunity to put on written submissions in reply.

3    On 8 October 2026, I made orders preserving the interlocutory injunction until the end of 13 October 2026, but otherwise dismissing the interlocutory application. These are the reasons for those orders. They assume familiarity with Mwambwa (No 1), so I will proceed directly to considering the evidence and submissions put by the parties at and after the second hearing.

Serious case to be tried

4    At the second hearing, counsel for Mr Mwambwa did not seek to bolster the argument he had advanced at the first hearing concerning the proper construction of the relevant Ministerial direction (Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110)) that was briefly considered in Mwambwa (No 1). Instead, counsel pursued as his client’s ‘principal ground on appeal’ an argument that the primary judge erred by not finding that the Administrative Review Tribunal had failed to comply with Direction 110. The Tribunal was said to have failed to consider the likely effect that any separation from Mr Mwambwa would have on his four-year old daughter, W, as required by paragraph 8.4(4)(d) of the direction. The argument developed at the second hearing was thus a factual one, about what the Tribunal did (or did not do) in reaching its decision.

5    Paragraph 8.4(4)(d) requires decision makers to consider, where relevant:

the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways…

6    This is an aspect of the primary consideration at paragraph 8(4), ‘the best interests of minor children in Australia’, and of the requirement in paragraph 8.4(1), to make a determination (relevantly) about whether refusal of the visa applied for is in the best interests of a child affected by the decision.

7    The Tribunal’s dispositive reasoning on that primary consideration was brief. It said at paragraph 122:

Having considered the available evidence against the relevant factors in paragraph 8.4(4) of Direction no. 110, the Tribunal finds that the best interests of the Applicant’s minor age daughter weighs very heavily against the exercise of its discretionary power to refuse to grant the visa, given that it accepts:

(a)    The Applicant’s and Ms Knezovich’s evidence that the Applicant and his daughter share a strong bond, his having cared for his daughter and resided with her prior to his being detained.

(b)    The Applicant’s minor daughter has a developmental delay and that she requires assistance from the Applicant in order to be able to financially access the necessary supports and therapists identified in the speech pathology assessment summary and to support her through this process.

(c)    The Applicant’s daughter’s support needs also include her need for assistance with toileting, which also requires the Applicant’s assistance and support in circumstances where according to Ms Knezovich, ‘every day is a struggle’ without it.

(d)    The Applicant intends to resume his parenting responsibilities for his minor age daughter if released.

8    The Tribunal did not, therefore, set out in its reasons each of the relevant considerations in paragraph 8.4(4) of Direction 110, or provide reasoning expressly directed to each of them.

9    The primary judge reasoned as follows:

(1)    Paragraph 8.4(4) did not require the Tribunal to have regard to or bring to account each of the matters set out in its subparagraphs, in the sense of weighing them each against the other. Rather, it only required the Tribunal to consider these matters in the course of coming to the determination which paragraph 8.4(1) required it to make as to the best interests of the child: Mwambwa v Minister for Immigration and Citizenship [2026] FCA 931 (PJ) at [33]-[39]. His Honour based this on Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160; (2024) 306 FCR 372 at [41]. This engages the point of construction of Direction 110 that was considered in Mwambwa (No 1) but not developed further at the second hearing.

(2)    It was therefore open to the Tribunal to ‘comply with para 8.4(4) of the Direction by considering a factor and then putting it to one side as not being of sufficient significance’: PJ [37].

(3)    Compliance with Direction 110 therefore did not require the Tribunal to ‘address the issue of separation in a distinct part of the reasons where findings were made concerning the matters that were required by cl 8.4(4) to be considered’: PJ [41].

(4)    It was significant that the Tribunal listed expressly the matters concerning W’s interests that led it to give very heavy weight against the refusal of the visa. The Tribunal described the particular circumstances that it found pertinent, and without categorising them by reference to the subparagraphs in paragraph 8.4(4): PJ [42].

(5)    The Tribunal’s reasons were therefore ‘founded on an overall view that there would be significant adverse consequences for the best interests of Mr Mwambwa’s daughter if his visa application was refused’: PJ [43]. Further, findings by the Tribunal, including that Mr Mwambwa and his daughter ‘share a strong bond’, indicated that the Tribunal accepted that it was in the best interests of the child that Mr Mwambwa not be separated from her: PJ [44].

(6)    Having made these strong findings to the effect that it would not be in W’s best interests for Mr Mwambwa to be separated from her, it would not make sense for the Tribunal to provide reasons about maintaining remote contact (that being a matter expressly contemplated under paragraph 8.4(4)(d)). It was ‘difficult to see how the Tribunal could have reached such a strong conclusion if indeed it had not considered the effect of separation on Mr Mwambwa’s child and had actually brought that to account’: PJ [45]-[46].

(7)    The Tribunal’s reasons were not confined to the short-term effect of separation, as Mr Mwambwa had submitted: PJ [47].

10    At the second hearing, on the authority of LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321, counsel for Mr Mwambwa submitted that paragraph 8.4(4)(d) is ‘a condition governing a “process of reasoning” to be undertaken in exercising the decision-making power’. The Tribunal’s reasons do not say what the likely effect of separation on W would be, nor whether or how any contact may be maintained. Counsel submitted that this was a central issue on review, as raised by the material before the Tribunal, so that its omission gives rise to an inference that it was not considered.

11    Counsel appeared to submit that LPDT is authority for the proposition that a condition governing the process of reasoning requires express consideration by the decision maker. But that is not what the plurality in LPDT was saying. When, at [33], their Honours referred to a breach of ‘a condition governing the process of reasoning’, they were merely articulating the now-established description of how jurisdictional error can arise. In the case before the High Court, that error arose because of a failure to comply with aspects of paragraph 8.1.1(1) of a predecessor to Direction 110. There, as here, there was no issue that a failure to comply with such the direction was a jurisdictional error (if material). That says nothing about the meaning or content of any given requirement in Direction 110.

12    The primary judge followed Nguyen in finding that paragraph 8.4(4)(d) only required ‘consideration (where relevant)’ as distinct from ‘having regard to’ or ‘taking into account’. Mr Mwambwa challenges that as a matter of the construction of Direction 110, presumably in the alternative to the factual argument he advanced at the second hearing. But his reliance on LPDT did not assist with the factual argument about what the Tribunal did, which he said was his primary argument at the second hearing.

13    Nevertheless, I accepted that the factual argument does give rise to a serious case to be considered on appeal. Mr Mwambwa relied on the decision of the Full Court in Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431 at [55]. I need not set out the principles summarised there; they are simply the well-established ones that govern the determination of whether a decision maker has dealt with a matter in the manner required. Mr Mwambwa relied, in particular, on the point that where a matter is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it, that may support an inference that the matter has not been considered.

14    This point is arguable on appeal because the primary judge did not engage with the matter on those terms. In particular, his Honour did not address whether paragraph 8.4(4)(d) required consideration of the emotional and psychological effect of separation on W, as distinct from Mr Mwambwa’s role in providing the pressing financial and other practical supports which the Tribunal clearly did find to be important.

15    It is not clear that the argument was put to the primary judge in that way, but regardless, it is open to Mr Mwambwa to put it that way now on appeal. At the second hearing, counsel drew attention to the following extract from the personal circumstances form, which constituted Mr Mwambwa’s response to a notice that he had received that the Minister or delegate was considering refusing the visa on character grounds:

Describe any current impact on the above listed children, and/or any likely impact on them in the event of a visa refusal decision:

The first refusal severely impacted my daughter she’s been waiting for me to return back home and misses me, very much. My family needs me. [W] is absolutely devastated and in tears every time she comes to visit me with Paradis. She doesn’t want to say goodbye to her dad. [W] also has a severe speech delay in her development she needs both her parents to get her the professional help she needs, and needs to start school next year.

(The ‘first refusal’ mentioned here refers to the refusal to grant an earlier application made by Mr Mwambwa for a Bridging E (Class WE) (BVE) visa, in August 2025, separate to the BVE application which is the subject of the current appeal.)

16    It is reflected in Jabari that the nature of the representations before a decision maker can influence both what they are required to consider, and what can be inferred from a failure to mention a matter in the reasons for decision: see Jabari at [55(4)] and [57]-[62].

17    I was satisfied that there is a serious case to be considered on appeal as to whether:

(a)    having the personal circumstances form and other representations before it, the Tribunal was required to consider the effect of separation on W, in the sense of the emotional and psychological effect of her father being removed to live in a different country; and

(b)    whether it should be inferred from the Tribunal’s reasons, taken as a whole, that the Tribunal did not give that matter consideration.

18    Calling, as this will, for a qualitative evaluation in all the circumstances of whether the inference should be made that the effect of separation on W was not considered, this rises to the level of a serious case for consideration on appeal.

19    I would not describe it as a strong case, however. As the Minister points out, the Tribunal expressly said that it had ‘considered the available evidence against the relevant factors in paragraph 8.4(4)’. While a statement of that kind is not conclusive, it is obviously relevant: see Minister for Immigration and Border Protection v Maioha [2016] FCAFC 215; (2016) 267 FCR 643 at [45]. Also, the reference in the Tribunal’s decision to the existence of a ‘strong bond’ between Mr Mwambwa and W may evidence consideration of the effect of separation in light of their emotional connection. But the fact that the Tribunal did not expressly refer to the effect of separation at all, let alone in terms of its emotional or psychological effect, makes the point arguable.

20    I proceeded on the basis that, as this is Mr Mwambwa’s primary argument, it is as high as his case on appeal rises. But for completeness, as has been said, I have seen no reason to modify the views about the construction of Direction 110 expressed in Mwambwa (No 1). The outcome is the same: my assessment was that Mr Mwambwa has a serious but not strong case on appeal.

Balance of convenience

21    On the subject of the balance of convenience, the parties joined issue principally in relation to the practical utility of the appeal.

22    With an exception I will mention, the evidence and submissions did not take much further two important aspects of the balance of convenience: on the one hand the importance of the Minister and officers of his Department engaging in the due administration of the Migration Act 1958 (Cth) and complying with their statutory duties without impediment or undue cost to the public purse; and on the other hand, the humanitarian concern to see Mr Mwambwa and his family kept together, which is made all the more acute by W’s developmental delays.

23    The exception was that Mr Mwambwa adduced further evidence about those delays, in the form of two letters from a general practitioner who has assessed W, respectively dated 26 March 2026 and 1 August 2026. As a result of objections to admissibility, at the second hearing I excised from the evidence passages of those letters that amounted to opinion from a person not qualified as an expert. But what remained were the doctor’s observations of W’s ‘severe speech delay with learning disability’ and that her ‘behavioural challenges and emotional regulation difficulties are becoming more frequent and intense’. The Minister accepts that those humanitarian concerns are real, albeit he qualifies them by reference to the domestic violence which Mr Mwambwa has perpetrated on W’s mother in the past. Nevertheless, if those had been the only matters weighing in the balance of convenience, I would have concluded that it strongly favoured the continuation of the injunction until the conclusion of the appeal.

Evidence and submissions as to the futility of the appeal

24    The Minister sought to meet this with the submission that the injunction will have no practical utility anyway. That is said to be because, even if the appeal is successful and the application for review of the decision to refuse a BVE is remitted to the Tribunal, Mr Mwambwa will be liable for removal from Australia before the Tribunal’s review of that decision is likely to be complete. It is common ground that this will destroy his eligibility for a BVE. This submission was briefly considered at the first hearing: see Mwambwa (No 1) at [20].

25    Two developments between the first hearing and the second hearing were potentially relevant to that submission. The first was that, on 28 August 2026, Mr Mwambwa requested the Minister’s personal intervention by way of the grant of a visa under s 195A of the Migration Act. The second was that, on 9 September 2026, Mr Mwambwa applied to the Federal Circuit and Family Court of Australia (Div 2) (Circuit Court) for an extension of time to seek judicial review of an earlier refusal of an application for a protection visa that he made. The request for Ministerial intervention has been given a reference number, but other than that there was no evidence as to what progress, if any, has been made in respect of either of these initiatives.

26    Further submissions advanced on behalf of the Minister as to futility, and evidence adduced in support of those submissions, resolved to the following propositions:

(1)    Mr Mwambwa is a detainee, and does not have on foot any valid application for a substantive visa, as distinct from a bridging visa. Section 198(5) of the Migration Act therefore requires the Department to remove him from Australia, expressly ‘regardless of whether [he] has made a valid application for a bridging visa’. So even if Mr Mwambwa’s BVE application were to be on foot before the Tribunal, due to remittal after a successful appeal, the duty to remove him would remain.

(2)    The Minister has put into evidence a Departmental policy document, known as a Standard Operating Procedure, titled ‘Removal from Australia - Establishing Liability and Availability’. This indicates that it is the policy of the Department that ‘[u]nfinalised merits review entitlements in relation to non-substantive visas are not a legislative barrier to removal and should not delay or otherwise prevent removal planning and execution…’. If that policy is applied, Departmental officers will not treat any remitted proceeding on foot before the Tribunal in relation to the BVE application as preventing or delaying Mr Mwambwa’s removal.

(3)    As for the application to the Circuit Court, the Standard Operating Procedure says that the Department’s policy is not to remove persons who are seeking judicial review. The Minister says, however, that this only applies to persons who have a right to seek judicial review and are exercising that right, or have not been given a reasonable time after merits review in which to do so. Mr Mwambwa falls into neither of those categories, the Minister submits, because the time within which he could have sought judicial review of the refusal of the protection visa, as of right, has expired. All he is doing now is seeking an extension of time, and unless and until the Circuit Court grants that, he has no right to seek judicial review of the refusal of the protection visa, so under the policy he is liable to removal.

(4)    Thus, the evidence of a solicitor for the Minister, Tareena Martin, on hearsay from an officer of the Department, Vincent Tang, is that a ‘Removal Officer’ in the Department will be advised that the standard procedure, under another Departmental policy document known as a Procedural Instruction, titled ‘Removal from Australia’:

would be followed in respect of removal planning for the appellant and … the Removal Officer … would be advised that the appellant's unfinalised judicial and potential merits review entitlements in relation to non-substantive visa would not delay or otherwise prevent removal planning and execution. I am also informed and verily believe that, if the appellant is successful in this appeal, the application of the [Procedural Instruction] and the [associated supporting document, titled ‘Removal from Australia – Guides Supporting Material’] on the currently available information will mean that the appellant will be likely be removed from Australia following the expiry of any injunction as a Removals Officer will likely reach a state of satisfaction that s 198 of the Act is enlivened and the removal is reasonably practicable and, the appellant will be likely be removed from Australia.

(5)    There is further hearsay evidence from a different Departmental legal officer confirming that the Standard Operating Procedure does not provide that an extension of time to seek judicial review of a substantive visa should delay removal, and that Mr Mwambwa’s application to the Circuit Court will not delay or otherwise prevent removal planning and execution.

27    In short, the Minister’s submission was that an injunction pending the determination of the current appeal to this Court will not prevent Mr Mwambwa’s removal from Australia on the expiry of that injunction, even if the appeal is successful, so the balance of convenience does not favour the grant of the injunction.

28    Mr Mwambwa’s response to these submissions can be summarised as follows:

(1)    The filing of the application in the Circuit Court shows that he has not exhausted his options in respect of judicial review. If his application for an extension of time and any resulting application for judicial review are granted, he may not need a bridging visa at all. While that application is on foot, at least, the Department’s policies preclude his removal (see further (3) below).

(2)    He has also invoked the s 195A process, similarly to the applicant who successfully secured interlocutory injunctions ultimately affirmed by the High Court in Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5. The compassionate circumstances surrounding his daughter W’s special needs mean that the request cannot be described as colourable.

(3)    It cannot be said now whether the Minister will remove Mr Mwambwa on a successful appeal. That involves speculation and conjecture about hypothetical and unknowable future matters. Mr Mwambwa disputed the understanding of the Standard Operating Procedure advanced by the Minister, arguing that he is still pursuing judicial review, so the policy should be understood as precluding his removal while that pursuit remains on foot.

(4)    Mr Mwambwa points out that two previous merits review proceedings before the Tribunal have already run to fruition without the need to remove him immediately.

(5)    The argument as to futility advanced by the Minister was rejected recently in SXHR v Minister for Immigration and Citizenship [2026] FCA 904.

Consideration of balance of convenience

29    It is convenient to set out a few matters which framed and informed the analysis of the balance of convenience.

30    First, the compassionate circumstances, mentioned above, surrounding W and her needs would ordinarily be given significant weight in favour of continuing the injunction.

31    Second, the ultimate question, however, turns on the utility of the final relief to be granted by the Full Court. It is the need to protect the utility of that relief that enlivens the Court’s power to grant interlocutory injunctions: see MZAPC at [25], [26], [31] (Gageler CJ, Gordon, Gleeson and Jagot JJ). The subject matter of the proceeding that will be preserved by the grant of the injunction (or not) is the person’s right to remain in Australia: see CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [14] (Mortimer J).

32    Mr Mwambwa’s submissions therefore correctly framed the issue in terms of the practical utility of the appeal. This assumed importance in light of the fact, accepted by both parties, that if Mr Mwambwa is removed from Australia, his right to seek a BVE visa will terminate, and with it the utility of the appeal. This was not enough to tip the balance in favour of an interlocutory injunction. The question remained, in effect: will the appeal have utility anyway, even if an injunction preventing Mr Mwambwa’s removal is granted until the conclusion of the appeal?

33    Third, counsel for Mr Mwambwa also confirmed, in response to a question from the bench, that he was not contending that the appeal would have utility, independent of the application to the Circuit Court and/or the s 195A request. That focussed attention on the implications of Mr Mwambwa’s pursuit of each of those avenues, as distinct from some general proposition that the appeal would have utility regardless. Counsel did, however, continue to rely on the third and fifth points in the summary of his argument given above, so I gave those separate consideration.

Consideration of the balance of convenience

34    On the basis of the evidence and submissions advanced on behalf of the Minister, I was satisfied that it is reasonably likely that even if an injunction were to be granted, and Mr Mwambwa is successful in the appeal, he will still be removed from Australia before the completion of his review before the Tribunal.

35    I did not accept Mr Mwambwa’s submission that for the Court to come to a view on that likelihood was to impermissibly engage in speculation or conjecture. Fundamentally, any court considering the grant of an interlocutory injunction is making an assessment as to which course carries with it the lower risk of injustice: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 at 680-681 (Hoffmann J), followed numerous times but see for example CPK20 at [14]-[15] and Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 at [11] and [13] (Beech J). That necessarily requires an assessment of the likelihood of future contingent events, based on evidence as to the present state of affairs and the capacity and intention of persons to act in the future. There may well be a line which, once crossed, takes the Court into impermissible conjecture, but I did not consider that it had been crossed here. There is evidence on which the Court can make a reasonable forecast of the probabilities.

36    In particular, the decision of the Tribunal under review before the primary judge was made on 18 March 2026, where the decision of the delegate that was under review before the Tribunal had been made approximately three months earlier on 23 December 2025. That review took just under three months. By comparison, the decision of the primary judge took place on 16 July 2026, and the discharge of the injunction his Honour had granted was effected from 24 July 2026. Mr Mwambwa would have been removed less than one month after that, if that removal had not been subsequently enjoined.

37    On that evidence, it is likely to take significantly less time to make arrangements to remove a non-citizen in Mr Mwambwa’s circumstances than it will for the Tribunal to come to a decision on review. While Mr Mwambwa adduced evidence of the content of a practice note about expedition published by the Tribunal, that practice note is in general terms and there was no evidence adduced by Mr Mwambwa (as the party bearing the onus of proof) as to how likely it was that expedition would be granted, or how much that was likely to truncate the review proceedings. Mr Mwambwa’s counsel did not advert to the possibility of expedition at the second hearing.

38    There was also the Minister’s evidence and submissions that the policy and approach of his Department would be to make arrangements to remove Mr Mwambwa once the appeal was concluded and any injunction expired. The evidence stated the intention to make those arrangements, and there was no reason to disbelieve that evidence. While Mr Mwambwa pointed out that two merits review proceedings involving him had already run to their conclusion without immediate steps being taken to remove him, he fairly conceded that this may have been because the merits review proceeding for the protection visa was ongoing until 6 March 2026, so that removal was foreclosed in accordance with the policy documents of the Department that were in evidence. He submitted, however, that the position was now the same because of his application to the Circuit Court.

39    I did not accept that, because I did not accept that the policy documents indicated that removal would not occur in the present circumstances. That was ultimately a question of fact, so those documents were not to be approached as though the Court was construing a statute. Materially, paragraph 4.4.5 of the Standard Operating Procedure says that persons ‘who are entitled to seek judicial review or who are seeking judicial review of a decision in relation to a substantive visa’ are not to be removed, because ‘their removal is not reasonably practicable due to the high likelihood they could successfully seek an injunction to prevent removal’. The question, therefore, was whether Mr Mwambwa was either: a person who was entitled to seek judicial review of a decision in relation to a substantive visa; or a person who was seeking judicial review of a decision in relation to a substantive visa.

40    Mr Mwambwa was clearly not the first of these; his application for an extension of time is necessary because he has lost his entitlement to apply for judicial review as of right, and needs an order of the Circuit Court if he is to regain that entitlement. There may be more ambiguity in relation to the second category, if it were taken by itself, but it should not be. Read in the context of the reference immediately beforehand to persons who are entitled to judicial review or who are seeking it, and taken as a whole, a person seeking judicial review is a person who has applied for judicial review, whether as of right or after a successful application for an extension of time or for any necessary leave. That is further suggested by the statement in paragraph 4.4.5 that such persons ‘usually should not be removed for a reasonable period after their merits review decision to allow them time to seek judicial review, or while their judicial review is ongoing’. A person seeking an extension of time is still a person who is trying to secure the ability to seek judicial review. Paragraph 4.4.7 of the Standard Operating Procedure confirms that it is not enough for a person to have ‘unfinalised litigation’, for such persons may still be removed.

41    This understanding of the policy tended to be confirmed by another policy document in evidence, entitled ‘Removal from Australia - Guides Supporting Material’, which at paragraph 7.3.7 says:

Where the removee has not voluntarily requested removal, removal must not be effected until all eligibility periods for merits or judicial review have passed, unless the Migration and Citizenship Litigation Branch have authorised removal action. If a removee has ongoing judicial review, please seek advice from [email address] as to whether the proceedings are a removal impediment.

42    Here, Mr Mwambwa’s eligibility period for judicial review of the decision to refuse to grant him a protection visa expired on 10 April 2026, so he is approximately five months out of time. Again, without construing the policy documents as though they were a statute, I was satisfied that the Department’s policies likely require arrangements to be made for Mr Mwambwa’s removal on the expiry of any injunction that would be granted in this proceeding, and that the Department would be likely to act on that requirement.

43    The application to the Circuit Court therefore does not preserve the practical utility of the appeal, because it does not mean that the Department will not take steps to remove Mr Mwambwa on the conclusion of the appeal. Nor does the s 195A request; it is well established that the Minister has no obligation even to consider such a request, let alone any obligation to grant it. Also, the mere making of the request does not qualify the duty to remove a person under s 198(6), which must apply by parity of reasoning to s 198(5), that being the duty that applies here: see Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34; (2024) 302 FCR 159 at [133] (Colvin and Jackson JJ) and the cases cited there. In that case (which went on appeal to produce the second High Court MZAPC decision) the applicant had sought judicial review in relation to exercises of power that were within (or outside) s 195A, the relevant requests having been made over a period of approximately six years. Here the s 195A request is recent and there is no suggestion that Mr Mwambwa has a right of judicial review in that regard. So this case is distinguishable from MZAPC.

44    I accepted that W’s circumstances mean that the s 195A request is not colourable, but that was a modest conclusion to reach. In view of the features of s 195A just mentioned, to put any weight on the possibility that the Minister will accede to the request would be to embark on impermissible conjecture. That is especially so since the same Minister, or officers acting in his name, is resisting any further restraint on the ability of his Department to remove Mr Mwambwa from Australia.

45    Mr Mwambwa relied on the application to the Circuit Court in a broader sense, by submitting that the application could be successful, and an application for judicial review granted, so that he would not need a BVE. That assumes, of course, that on remittal after successful judicial review, the Tribunal grants the protection visa. But a more fundamental problem with the submission is that it appeals to the outcome of the Circuit Court application. Both parties rightly accepted that it was not the province of this Court to make forecasts as to the likelihood that the Circuit Court would grant the application for an extension of time, or that it would allow any ensuing application for judicial review. It follows further from that proper reticence that whether any injunction is to be granted for the purpose of preserving the utility of the Circuit Court proceeding is also a matter for the Circuit Court (if an application for such an injunction is made). Any injunction granted by this Court would only be justified in order to preserve the utility of the appeal before it. For the reasons given, the fact of the application to the Circuit Court is unlikely to preserve that utility.

46    It therefore follows that the balance of convenience does not favour Mr Mwambwa, because the appeal is unlikely to preserve the underlying subject matter of the proceeding, namely his ability or right to remain in Australia. That further makes it unlikely that the appeal will permit the important humanitarian concerns engaged by W’s circumstances to be allayed.

47    I did not accept the submission that SXHR was a case where the argument the Minister advanced before me was rejected. The submission to that effect was founded on the following aspects of Stellios J’s reasons in that case:

(a)    first, at [36] his Honour indicated that he was prepared to assume that the Department’s duty to remove the applicant before him would remain, regardless of the outcome of the application for judicial review that was before the Court; and

(b)    then, at [40] because the consequence of removal would be to destroy the applicant’s entitlement to a BVE, his Honour held that the balance of convenience favoured the grant of an injunction because it would preserve the utility of any remitted application to the Tribunal.

48    But it appears from Stellios J’s reasons, in my respectful view, that the argument put to me was not put to his Honour. While, at [40], his Honour speaks in terms of the applicant being ‘liable to removal’, the assumption or finding on which he proceeds is that if an injunction is granted in his proceeding, any subsequent review remitted to the Tribunal will run to its conclusion, with the prospect that the applicant will receive a BVE while still in Australia and so still eligible to receive it. There was no suggestion that any submission supported by evidence was put to the effect that the applicant would be removed soon after the expiry of any injunction. Each case in this area turns on its own facts and I did not consider that SXHR stands as authority inconsistent with the conclusion that I have reached.

49    That being the case, the public interest in the due operation of the legislative scheme under the Migration Act (CPK20 at [80], [81]) comes to the fore. The preservation of the outcome of the appeal does not present a good reason to interfere with that public interest, the appeal itself being unlikely to have practical utility.

50    Even if he is removed, Mr Mwambwa will still be eligible to apply for a partner visa, as is his stated intention. I have taken into account evidence to the effect that the waiting period for such an application could be up to 30 months, and I was conscious that any delay will be during a period where W is growing as a young child with the impairments that have been described. But for the reasons given, an injunction pending the outcome of the appeal is only likely to defer that outcome, not remove it.

51    Also, the Minister has put into evidence Ministerial Direction 117 (‘Direction 117 – Order for considering and disposing of Family visa applications under section 47 and 51 of the Migration Act 1958’), made under s 499 of the Migration Act, which provides that if an application involves special circumstances of a compassionate nature and there are compelling reasons to depart from the usual order of priority for the processing of family visa applications, that can occur, so that an application could rise to the highest priority. It is to be expected that if Mr Mwambwa invokes that direction in any partner visa application made from overseas, the Minister and his Department, having presented that evidence to the Court, will consider any request for expedition in good faith.

Summary and conclusion

52    There is a serious case to be put on appeal. But it is not a strong case, and the likely futility of the appeal meant that the balance of convenience favoured the Minister and the Department being permitted to administer the Migration Act without the intervention of the Court. Whether the application to the Circuit Court provides a good reason for similar intervention will be a matter for that court, if such intervention is sought.

Associate:

Dated:    13 October 2026