Federal Court of Australia

DHV17 v Minister for Immigration and Citizenship [2026] FCA 1523

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application filed in the Court today, 9 October 2026, seeking relief against the respondents pursuant to s 39B of the Judiciary Act 1903 (Cth), and interlocutory relief, to restrain his removal pursuant to s 198 of the Migration Act 1958 (Cth) be dismissed with costs.

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

REASONS FOR JUDGMENT

STELLIOS J:

1    At 11.19am on 9 October 2026, the applicant lodged for filing an urgent application, purportedly pursuant to s 39B of the Judiciary Act 1903 (Cth), to restrain his removal from Australia pursuant to s 198 of the Migration Act 1958 (Cth). The application was accepted for filing at 1.29pm and was supported by an affidavit affirmed on the same day by the applicant.

2    There is no separate substantive application for judicial review before this Court.

3    An application for an interlocutory injunction had been refused by the Federal Circuit and Family Court of Australia (Division 2) earlier that same day: DHV17 v Minister of Immigration and Citizenship [2026] FedCFamC2G 1999.

4    An urgent hearing by video link was listed for 2.00pm. I heard from the applicant and counsel on behalf of the Minister for Immigration and Citizenship. The Minister relied on an affidavit of Charlotte Elizabeth Saunders, a solicitor for the Minister, affirmed the same day. At the time of the hearing, the applicant had been transported to the airport for his removal on a flight departing at 5.10pm. The applicant’s legal representative, who had lodged the application with the Court, was also in attendance. However, he explained to the Court that, for reasons to be identified later, he had ceased to represent the applicant, but that the applicant wanted to press the application as a litigant-in-person.

5    Having heard from the parties, I adjourned the Court at approximately 3.00pm. Given the urgency of the situation, I made my order following the short adjournment and indicated that I would provide short reasons in due course. The written reasons that follow reflect my reasons for the order that I made on 9 October 2026.

6    The relevant facts may be briefly stated. Since arriving in Australia, the applicant briefly held a Humanitarian Temporary Stay (Class UJ) (Subclass 449) visa, followed by a series of Bridging Visas E (Subclass 050) (BVE), all of which have ceased. On 13 July 2026, the applicant lodged an application for a further BVE. It was refused by a delegate of the Minister. On 3 August 2026, the Administrative Review Tribunal affirmed that refusal decision.

7    On 4 August 2026, the applicant lodged a request for ministerial intervention under ss 195A and 351 of the Migration Act.

8    On 3 September 2026, the applicant lodged a further BVE application. It too was refused.

9    On 7 September 2026, the applicant was notified that his request for ministerial intervention under s 351 of the Migration Act had been assessed by the Department of Home Affairs against the Ministerial Instructions – requests for use of the Minister’s intervention powers under sections 351 and 501J of the Migration Act 1958. The Department (a) assessed the request as not having complied with Part 2 of the Ministerial Instructions and (b) informed the applicant that the request had been finalised without referral to a Minister.

10    The originating application stated the following:

On the grounds stated in the accompanying affidavits, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903 (Cth):

1.    An injunction restraining the Respondents, the Secretary of the Department of Home Affairs, the Minister for Immigration and Citizenship, and their officers, servants and agents from removing or facilitating the removal of the Applicant from Australia pursuant to s 198 of the Migration Act 1958 (Cth), unless and until:

(a) the best interests of the Applicant's minor Australian-citizen child, Aiden Sara (born 10 May 2024), have been considered as a primary consideration in the process of planning the Applicant's removal, having regard to the Applicant's and the child's current circumstances; and

(b) in accordance with the Department's applicable removal procedures, consideration has been given by the appropriate departmental officers to whether those circumstances should be referred through the Ministerial Intervention process for possible personal consideration by the Minister under s 195A of the Migration Act 1958 (Cth).

11    The urgent interlocutory relief was stated as follows:

The Applicant also claims urgent interlocutory relief.

1.    Until the determination of this application or further order, an injunction restraining the Respondents and their officers, servants and agents from removing or facilitating the removal of the Applicant from Australia pursuant to s 198 of the Migration Act 1958 (Cth).

12    The urgent interlocutory relief can be put to one side because it was sought until the determination of this application.

13    Turning to the grounds for the injunction, ground 1(a) is obscure. However, as I understood the explanation provided at the hearing by the applicant and, separately, his former legal representative, the grounds can be reduced to the proposition that the injunction should be ordered to prevent the applicant’s removal until consideration was given to the best interests of the applicant’s minor child as part of the s 195A ministerial intervention process. Subsection 195A(2) of the Migration Act provides that:

If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies [ie, a person who is in detention under s 198: s 195A(1)] a visa of a particular class (whether or not the person has applied for the visa).

14    The Minister must exercise the power personally (s 195A(5)), but is under no duty to consider whether to exercise the power (s 195A(4)).

15    On 8 October 2026, the Assistant Minister for Immigration declined to consider whether the power under s 195A(2) should be exercised. In doing so, the Assistant Minister noted a document entitled “The Best Interests of the Child and Family Unit Summary” provided by the Department as part of the ministerial brief. That Summary outlined the position of (a) a child the applicant claims to be his biological child and (b) the mother of the child who is the applicant’s ex-partner.

16    The primary contention put on behalf of the Minister was that the outcome sought in the application, that is, consideration of the circumstances of the applicant’s child in the ministerial intervention process under s 195A(2), has come to pass. Since the Assistant Minister has noted the interests of the child and the family unit in determining not to consider ministerial intervention under s 195A, nothing further can be achieved by an order by the Court. It was on this basis that the applicant’s legal representative had determined that he could no longer represent the applicant consistently with his obligations to the Court.

17    I accepted the Minister’s submission and, accordingly, dismissed the application.

18    I note that I had some other concerns about the application. First, there is no separate substantive application for judicial review before the Court and, therefore, an injunction would not be in aid of protecting the integrity of the Court’s processes in a proceeding pending before the Court: Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; 99 ALJR 486 at [23], [25] (Gageler CJ, Gordon, Gleeson and Jagot JJ).

19    Secondly, I raised with counsel for the Minister concerns I had about the jurisdiction of the Court to hear the application because of the limiting operation of s 476A(1) of the Migration Act. The chapeau to s 476A(1) provides that, despite (relevantly) s 39B of the Judiciary Act, “the Federal Court has original jurisdiction in relation to a migration decision if, and only if” the decision falls into one of four specified categories.

20    The Minister did not, however, press any claim that s 476A of the Migration Act operated in these circumstances to limit the jurisdiction of the Court under s 39B of the Judiciary Act. As I understood it, the submission on the operation of s 476A was that the claim made in the application relating to ministerial intervention under s 195A of the Migration Act was not capable of producing a “migration decision” for the purposes of s 476A(1) and, accordingly, s 476A(1) did not operate to limit the jurisdiction of the Court. Rather, the jurisdictional claim made was that the application did not specifically identify any decision to be challenged and, therefore, the application was not competent.

21    Given that I accepted the Minister’s primary contention, and in view of the urgency in determining the application, it was not necessary to consider these other matters further.

Associate:

Dated:    15 October 2026