Federal Court of Australia

MGO26 v Minister for Immigration and Citizenship [2026] FCA 1529

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 9 October 2026 is dismissed.

2.    By 4.00 pm AWST on 19 October 2026, the respondents 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.

3.    By 4.00 pm AWST on 26 October 2026, the applicant must file and serve a responsive outline of written submissions of no more than 3 pages in length.

4.    By 4.00 pm AWST on 2 November 2026, the respondents must file and serve any outline of written submissions in reply of no more than 1 page in length.

5.    The issue of the costs of the 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 12 October 2026, sitting as duty judge, I heard an urgent interlocutory application to restrain the removal from Australia of the applicant in this proceeding. At the end of the hearing, I dismissed the interlocutory application. These are the reasons for that dismissal.

Background

2    The applicant is a national of Taiwan. She is not a citizen of Australia, and she did not hold a visa authorising her presence in this country. At the time of the hearing, she was in immigration detention.

3    On 2 September 2026, the applicant applied for a protection visa. But on 14 September 2026, she gave written notice to the first respondent (Minister) that she wished to withdraw that application. On 16 September 2026, she requested voluntary removal from Australia.

4    On 5 October 2026, the Minister’s Department gave the applicant notice of the intention to remove her from Australia, under s 198 of the Migration Act 1958 (Cth), on 13 October 2026.

5    On 9 October 2026, the applicant filed with this Court an originating application purporting to be made under s 39B(1) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth) together with s 23 of the Federal Court of Australia Act 1976 (Cth). The final relief sought included:

(a)    a declaration that the applicant is not liable to be removed from Australia because of the operation of s 198(5A) of the Migration Act;

(b)    a declaration that the withdrawal of the protection visa application on 14 September 2026 was of no effect;

(c)    an injunction restraining the applicant’s removal;

(d)    a declaration relying on Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 (the basis of which is hard to understand); and

(e)    in ‘the alternative, and only if the Court finds there is no real prospect of removal becoming practicable in the reasonably foreseeable future: a declaration that her detention is unlawful, and an order in the nature of habeas corpus’.

6    On 12 October 2026, the applicant withdrew her request for voluntary removal. The respondents accepted that at the time of the hearing she was ‘involuntary to removal’.

Jurisdiction

7    I was concerned that this Court did not have jurisdiction in the matter, in the sense of judicial authority to determine the controversy between the parties. The concern arose because s 476A(1) of the Migration Act provides that the Court ‘has original jurisdiction in relation to a migration decision if, and only if’ certain conditions apply, none of which conceivably arose here.

8    The effect of s 476 of the Act is that original jurisdiction ‘in relation to migration decisions’ rests with the Federal Circuit and Family Court of Australia (Circuit Court), in all circumstances other than those set out in s 476A. But the scope of that conferral of jurisdiction depends on the proper construction of the phrase ‘in relation to migration decisions’. In McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 at [18] Allsop CJ (Besanko J agreeing) held that the effect of s 476A(1) was that the Federal Court had no jurisdiction in ‘direct judicial review’ of a decision to take the appellant into detention under s 189 of the Act. His Honour further held that the:

removal or carve out of jurisdiction by s 476A does not, however, go beyond such direct judicial review, and s 476A does not purport to restrict otherwise the width of the Court’s matter jurisdiction under s 39B(1) or (1A)(c) that it has or otherwise would have…

9    The applicant is a litigant in person, who says she has no command of English and appeared at the hearing with the assistance of a Mandarin interpreter. She was therefore not in a position to make any submissions about this highly technical subject. But the respondents accepted that the Federal Court does have original jurisdiction to entertain the application. They pointed out that in Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1396, Thomas J held that the Circuit Court did not have jurisdiction in relation to an application brought on a very similar basis, that is, on the basis that a visa application that had been the subject of a notice of withdrawal should nevertheless be taken not to have been effectively withdrawn. I note that after careful consideration, Markovic J followed that aspect of Gillera in Nguyen v Federal Circuit and Family Court of Australia [2024] FCA 471.

10    I respectfully agree with the conclusions as to the Circuit Court’s jurisdiction given in Gillera and Nguyen, for the reasons given in those decisions: essentially, if a protection visa application has been withdrawn, there has been no decision to refuse that application capable of being a ‘migration decision’ for the purposes of s 476 or, for that matter, s 476A. But it does not necessarily follow from the absence of the Circuit Court’s jurisdiction on that basis that the Federal Court does have jurisdiction.

11    When asked why it was that the respondents accepted that the Court did have jurisdiction, counsel for the respondents pointed to Thomas J’s acceptance in Gillera at [36] of dicta of Hely J in NACO v Minister for Immigration and Multicultural Affairs [2002] FCA 474 to the effect that in certain circumstances ‘mandamus would lie under s 39B of the Judiciary Act 1903 (Cth) to compel the respondent to determine the application according to law’. But that sounded very much like the kind of ‘direct judicial review’ of a migration decision described by Allsop CJ in McHugh, albeit a decision not yet made. I was not satisfied that this gave the Court jurisdiction.

12    Rather, in my view this Court has jurisdiction in this matter because one aspect of the application – in truth its central aspect – was a contention that the withdrawal of the applicant’s protection visa application should be treated as ineffective, at least for the purposes of s 198(5A) of the Migration Act. If that were so then, as will be explained below, that provision would negate what would otherwise be a duty to remove the applicant from Australia arising under s 198(5) of the Act. So the application can be conceived as one that invokes s 39B(1A)(c) of the Judiciary Act, by raising a matter arising under a law made by the Parliament, namely, whether the preconditions requiring and thus authorising the applicant’s removal under s 198(5) of the Migration Act have arisen. In McHugh, the Full Court accepted as correct a concession made by the Minister as to jurisdiction on a similar basis: see Allsop CJ at [19] and Mortimer J at [239].

13    To be fair to the applicant, this is expressly the basis on which jurisdiction was invoked in her originating application. That was despite her inability to make oral submissions on the subject; it can be inferred that she used generative artificial intelligence to prepare her court papers, and at the hearing she confirmed this in relation to her affidavit. On the subject of jurisdiction, at least, the AI was mostly correct.

14    I say ‘mostly’ because, for completeness, I did not accept that the applicant’s entirely hypothetical attempt to raise an unlawful imprisonment or habeas corpus ground provides the Court with jurisdiction. That seemed to me to be a colourable attempt to clothe the Court with jurisdiction and, in any event, it was framed in terms that make it clear that there was no actual claim at that stage of the hearing that the applicant’s detention was unlawful.

The basis of the application

15    The originating application has six grounds. The last two could be discarded immediately: ground 5 asserts irrevocable harm if the applicant were removed to Taiwan or the People’s Republic of China and, while it might be relevant to balance of convenience, it was not itself a ground of relief; and ground 6 is the habeas corpus point.

16    Ground 3 also does not raise a matter for immediate determination by the Court. It is a contention that if the withdrawal of the protection visa application was effective, s 48A of the Migration Act did not serve as a bar to any future protection visa application. It was not clear why the applicant sought to raise that in the interlocutory application; there was no suggestion that she had sought to make a new protection visa application, or that the Minister has asserted that she would be barred from doing so. That being so, the issue it raised was also hypothetical and not justiciable at present.

17    Of the remaining grounds, the first two can be dealt with together. As already foreshadowed, they amounted to a contention that the notice of withdrawal of the protection visa application that the applicant gave on 14 September 2026 was not effective under s 49 of the Migration Act, so that she has or should be treated as having a protection visa application on foot which has not been refused. It would follow, on the applicant’s case, that s 198(5A) negated the duty of officers of the Department to remove her from Australia that would otherwise arise under s 198(5). I will call these the 198(5A) grounds.

18    The further ground that required consideration, ground 4, relied on criminal charges which, the applicant said, have been brought against her by the Director of Public Prosecutions of Western Australia. She claimed that because her removal from Australia would prevent her from appearing to answer them, removal would not be ‘reasonably practicable’, presumably within the meaning of that phrase in s 198(5) of the Act. I will call this the prosecution ground.

Principles as to interlocutory injunctions

19    It is convenient to repeat, in so far as relevant, the summary of well-established principles applicable to interlocutory injunctions given in Frigger v Trenfield [2019] FCA 1746 at [6]:

…

(2)    Where an applicant seeks interlocutory relief, it is necessary to demonstrate that:

(a)    there is a serious question to be tried as to the applicant's entitlement to relief;

(b)    the applicant is likely to suffer injury for which damages will not be an adequate remedy; and

(c)    the balance of convenience favours the granting of an interlocutory injunction.

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J).

(3)    The applicant must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: ABC v O’Neill at [65] (Gummow and Hayne JJ); Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 at [9] (Beech J).

(4)    The likelihood of success required is dependent upon the nature of the right being asserted and the practical consequences that are likely to flow if the injunction is granted: ABC v O'Neill at [71]; Twinside at [9]; Apotex Pty Ltd v Cipla Limited [2017] FCA 1627 at [40] (Beach J).

(5)    The resolution of the question of where the balance of convenience and justice lies requires the court to exercise a discretion: Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [65] (Dowsett, Foster and Yates JJ). The court will weigh up the injustice which might be suffered by the respondent if the injunction is granted and the applicant later fails at trial, against the injustice which might be suffered by the applicant if the injunction is not granted and the applicant later succeeds at trial: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Twinside at [11].

(6)    There are questions as to whether the requirement that damages are not an adequate remedy is an independent requirement or whether it is relevant to the broader question of the balance of convenience: see e.g. National Australia Bank Ltd v Joyce [2012] WASC 224 at [38]-[41] (Edelman J). In any event, the test may be expressed as whether the applicant would, in all material respects, be in as good a position if they were confined to a remedy of damages as they would be if an injunction were granted: Samsung Electronics at [62].

(7)    The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance: Samsung Electronics at [67]. As the apparent strength of the applicant’s case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 at 54-55; Twinside at [11].

…

20    The prejudice suffered by the applicant here, if an injunction was not granted, was her removal from Australia, so damages were unquestionably not an adequate remedy. It remained, then, to assess whether there was a serious question to be tried, and where the balance of convenience lay, and to consider those matters together in the manner dictated by these authorities.

No serious question to be tried

21    The dismissal of the interlocutory application was principally based on a conclusion that there was no serious question to be tried in this matter. To explain why, it is convenient to start by setting out how the relevant statutory framework applied to the applicant.

The statutory framework and its application to the applicant

22    The Migration Act defines a ‘non-citizen’ as a person who is not an Australian citizen: s 5(1). It was common ground that the applicant is such a person.

23    An ‘unlawful non-citizen’ is defined in s 14(1) to be a non-citizen in the migration zone (for present purposes, in Australia) who is not a lawful non-citizen. A ‘lawful non-citizen’ is a non-citizen in the migration zone who holds a visa that is in effect: s 13(1). Again, the applicant was clearly an unlawful non-citizen under the Act.

24    Section 189(1) of the Act thus required an officer of the Department, who knew or reasonably suspected that the applicant was an unlawful non-citizen, to detain her. This happened in the case of the applicant, who appeared at the hearing by video link from immigration detention (with the assistance of a Mandarin interpreter).

25    In any event, the applicant’s request on 16 September 2026 that she be removed from Australia engaged the officer’s duty under s 198(1) to remove her as soon as reasonably practicable: s 198(1). Arguably, that was the duty under which the Department initially made the arrangements to remove her on 13 October 2026. But as has been said, by the time of the hearing the respondents accepted that her removal was no longer voluntary.

26    Section 198(5) thus became relevant. It provides that:

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.

27    Section 195(1) authorises applications for visas that are made by detainees within a relatively short period of time of an officer notifying the detainee of certain things. There was no evidence that the applicant was notified of these things, or as to how long after that notification it took for her to apply for a protection visa, but she did not dispute the proposition put by counsel for the respondents that she did not apply for it in accordance with s 195(1). The other limb of s 198(5)(b), concerning s 137K was not applicable. Hence, taken in isolation, s 198(5) required the removal of the applicant from Australia as soon as reasonably practicable.

28    In order to counter this, as has been said, the applicant relied on her application for a protection visa, in conjunction with s 198(5A). There was no dispute that when made, that visa application was valid. Under s 47(1), then, the Minister was required to consider the application. Under s 47(2), that requirement continued until:

(a)    the application is withdrawn; or

(b)    the Minister grants or refuses to grant the visa; or

(c)    the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

29    Sub-paragraph (c) was not relevant here and the Minister has neither granted nor refused to grant the protection visa for which the applicant applied. Hence the question was whether (a) applied, because the application was withdrawn.

30    Section 49 governs that. In so far as it is relevant it provides:

(1)    An applicant for a visa may, by written notice given to the Minister, withdraw the application.

(2)    An application that is withdrawn is taken to have been disposed of.

(3)    For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.

…

31    Subject to exceptions that do not apply here, s 11A(1) provides that an application under the Act is ‘finally determined’ when:

(a)    a decision that has been made in respect of the application is not, or is no longer, subject to any form of review by application to the [Administrative Review Tribunal] under Part 5; or

(b)    a decision that has been made in respect of the application was subject to some form of review by application to the [Administrative Review Tribunal] under Part 5 but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

32    Each of those possibilities operates on the making of a ‘decision’ in respect of the application. While that term is not defined for the purposes of s 11A, or for the purposes of the Act generally, there cannot have been any ‘decision’ in respect of the protection visa application made by the applicant here. Hence that application had not been ‘finally determined’.

33     That was relevant when one comes to the terms of s 198(5A), which are:

Despite subsection (5), an officer must not remove an unlawful non-citizen if:

(a)    the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and

(b)    either:

(i)    the grant of the visa has not been refused; or

(ii)    the application has not been finally determined.

The 198(5A) grounds

34    The application, to the applicant, of this possible exception to the duty to remove her under s 198(5) of the Migration Act was the main issue canvassed at the hearing of the interlocutory application.

35    Counsel for the respondents conceded that s 198(5A)(b)(ii) did not resolve that issue, because, as has been explained, the applicant’s protection visa application had not been ‘finally determined’ as defined in s 11A.

36    In reply submissions, the applicant made her own concessions about the operation of the statutory framework. She accepted that if the written notice of 14 September 2026 was effective to withdraw the protection visa application, then ‘s 198(5A) does not keep a prohibition alive over an application that has truly been withdrawn’. Also: ‘She does not ask the Court to read s 198(5A) as applying after a real withdrawal. The argument is about whether there was one.’

37    It was true that the applicant is a litigant in person, with a limited or no command of English. It was also true that she must have produced that those reply submissions with AI, as (with all respect) it was a logically ordered, coherent four page document, in the English language, which appeared within an hour and a half of the service of the Minister’s submissions, to which it replied. But none of those matters, separately or together, required the Court to disregard the concession, made in a written submission filed by a party. Being a concession of law, the Court was not required to accept it, and indeed remained bound to determine the matter according to its view of the correct law. Nevertheless, in my view, the Court here was entitled to proceed on the basis that the understanding of the law advanced by the applicant’s reply submissions was not in issue, and to adjust the reasons it gave accordingly: see generally Australian Securities and Investments Commission v Wilson (No 3) [2023] FCA 1009 at [130].

38    In addition to these matters, that would apply in any case, it was necessary to consider that in this case the Court was being asked to decide the matter on an urgent basis. There are strong reasons, in my view, why it is in the interests of the administration of justice for the Court to deal with a concession of the kind made in accordance with the usual approach just outlined, even where there may be doubt about whether the person making the concession truly understood it and its import. The marked increase in the frequency with which litigants in person have appeared in the courts in recent times, as well as the swift and widespread adoption of AI, mean that the administration of justice risks being unworkable if the courts are too ready to inquire into a litigant’s understanding of a concession that has been made. To be clear, no one asked me to make that inquiry here.

39    For those reasons, I did proceed on the basis that, in this case, there was no real issue that s 198(5A) could only apply if the applicant’s withdrawal of the protection visa were held to be ineffective for the purposes of the Act. That is:

(a)    while, if s 198(5A)(a) is read literally, the applicant ‘has made a valid application for a protection visa’; and

(b)    while, for the reasons given by the Minister, s 198(5A)(b) does not operate to treat that application as though it were at an end,

nevertheless, neither party contended that the making of an application that has been validly withdrawn is enough to engage s 198(5A), so as to negative the Department’s duty to remove under s 198(5A).

40    I had little hesitation in accepting that common position as correct. To read s 198(5A) as permitting a person to inoculate themselves against removal from Australia under s 198(5), by the simple expedient of making an application for a protection visa and then withdrawing it, would be to give it an absurd reading that could not possibly reflect Parliamentary intention. The better reading is that, where s 198(5A)(a) says that a person ‘has made a valid application for a protection visa’, it is referring to an application that is on foot. Section 198(5A)(b) imports the further sensible requirement, in broad terms, that an outcome of the application that is on foot must remain unknown, including the outcome consequent on any merits review sought as of right.

41    To establish a serious case to be tried, then, the onus was on the applicant to show that it was sufficiently arguable that the notice of withdrawal of her protection visa application was, for the purposes of the Migration Act, ineffective to actually withdraw the application.

42    The notice of withdrawal itself was not in evidence, although a letter from the Department to the applicant recording the fact of the withdrawal was. In any event, the applicant did not contest the fact of the withdrawal notice having been given, nor did she claim that it did not bear her genuine signature; there was no claim, for example, of forgery. To the contrary, her evidence and submissions proceeded on the basis that she ‘withdrew’ the protection visa application. She did not claim that her will had been overborne, or that the sending of the notice was inadvertent; rather, her claim was that she sent it ‘because of poor advice from a Status Resolution Officer, because her English is poor, and because she was promised a visa which turned out to be futile’. Her claim was: ‘I did not properly understand what I was being told.’ So, she said, the withdrawal was not her ‘free and informed decision’.

43    This submission runs up against two previous decisions of this Court.

44    The first is Gillera where, after determining that the Circuit Court did not have jurisdiction, Thomas J went on to determine in any event whether the appellant’s claim had been made out. That claim was similar to the claim of the applicant here; the appellant had sent a signed withdrawal of visa application form to the Department, but subsequently asked for the acceptance of the form to be reconsidered on the basis that she had signed and returned it without knowing the real consequences. Her evidence that she did not realise that the filing of the form meant that she was withdrawing her visa application was unchallenged.

45    The appellant’s argument in Gillera centred on the proper construction of s 49 of the Migration Act, which is reproduced above (at [30]). She argued that the word ‘withdraw’ required a purposive or intentional act, as did the requirement for the withdrawal to be ‘given’. Thomas J held, in effect, that this argument overlooked the inclusion in s 49 of the words ‘by written notice given to the Minister’. His Honour held that those words prescribe what is required to withdraw a visa application. So (Gillera at [58]): ‘The way in which the subsection operates is clear from the words used – the section comes into operation upon the giving of the written notice to the Minister.’

46    After distinguishing a case on which the appellant had relied, and considering the explanatory memorandum to the bill in which the previous iteration of s 49 was introduced, Thomas J held that the certainty that came with permitting the Department to treat a withdrawal as effective on its face, without making further inquiries, meant that the Minister’s interpretation of s 49 was preferable.

47    The second previous decision is Nguyen v Minister for Immigration and Multicultural Affairs [2024] FCA 1424 (Nguyen II), in which Lee J came to a similar conclusion, holding (at 10]) that the withdrawal of a visa application was an ‘objective fact’.

48    The applicant here made no submission that this reasoning in Gillera and Nguyen II was wrong, or plainly wrong. Had she done so, I would not have accepted it, because in my respectful view it is correct, for the reasons Thomas J and Lee J respectively gave. This meant that just as on the facts in Gillera, the appellant’s claim was to be rejected, so the applicant here has no serious case to be tried.

49    That being so, I considered that even if the applicant were to make out at trial the factual propositions for which she contended, the notice of withdrawal would still be effective for the purposes of the Migration Act, including for the purposes of the agreed interpretation of s 198(5A). I therefore concluded that there was no serious question to be tried in relation to the 198(5A) grounds.

The prosecution ground

50    The prosecution ground may be dealt with briefly. One difficulty with it was that the evidence on which it was based was vague and full of gaps. The applicant relied on an unsworn affidavit she provided (the respondents did not oppose this). It said that on 23 June 2026, she was charged with seven charges after a police search: one of the charges alleges possession of stolen or unlawfully obtained property, the rest are drug related charges.

51    The applicant’s unsworn affidavit then continues as follows (all the square bracketed gaps are in the original, and the unsworn affidavit has no actual annexures):

26    I have not been convicted of any offence. I deny these charges. I understand that I am presumed innocent. I will attach the prosecution notice as annexure PTY-C when my barrister gives it to me. Until then: prosecution notice or charge numbers [insert — do not guess]; court [insert]; next date [insert]; barrister [insert name and telephone]; whether the DPP has discontinued the charges [No, as at the date I affirm this affidavit / Yes, on (date)].

27    I have been told by my criminal barrister that he is trying to resolve the charges with the Office of the Director of Public Prosecutions for Western Australia. If a resolution is reached the charges may be discontinued. I do not ask this Court to tell the Director what to do.

28    If the charges are not discontinued, I need to stay in Australia to answer them. If I am removed I cannot appear at my own criminal case. I ask the Court to restrain my removal until those charges are discontinued or, if they are not, until they are finally determined.

29    I do not say that these charges make my detention unlawful. I say only that, while they are pending, removing me would stop me defending them.

52    I was reluctant to base any injunction on vague and fragmentary (and unsworn) evidence of this kind. In particular, there was no clarity on how and to what extent the applicant’s absence from Australia would impact on her ability to defend the charges. That, together with two other matters, led me to conclude that there is no serious case to be tried on the prosecution ground.

53    The first matter concerned the basis on which the prosecution ground is put in the originating application: ‘If the charges are not discontinued, removal would prevent [the applicant from] appearing to answer them, and would not be removal as soon as reasonably practicable.’ To the extent that there is authority on the practicability of removing an unlawful non-citizen, it tends to focus on the ability of the officer to remove the person, not on whether the outcome of removal will be adverse to the non-citizen. Certainly, matters pertaining to the welfare of the non-citizen can be relevant, such as medical conditions which render a non-citizen unfit to travel to a country, or the outbreak of disease, natural disasters or civil unrest in that country. But these matters are relevant to the objective assessment as to ‘whether there are steps which are practically available to be taken which, if taken, can realistically be predicted to result in the removal of the detainee to that country in the reasonably foreseeable future’: ASF17 v Commonwealth [2024] HCA 19; (2024) 282 CLR 172 at [41]. Thus, the question is about the ability to remove the person, not the adverse consequences the person may experience after having been removed. Removal will be adverse to a non-citizen in most, if not all cases; that by itself cannot make the removal impracticable: see generally TCXM v Minister for Immigration and Citizenship [2026] HCA 13 at [40]-[42]; ASF17 at [33]-[34], [41]-[42]. So, even assuming that the facts relied on by the applicant would be made out at the final hearing, I doubted that would lead the Court to conclude that her removal is not ‘reasonably practicable’ for the purposes of s 198(5) (see [26] above).

54    The second matter is that, in any event, s 153 of the Migration Act governs the position. It provides:

153     Removal or deportation not contempt etc. if no stay certificate or warrant

(1)    Subject to subsection (2), if:

(a)    this Act requires the removal or deportation of a non-citizen; and

(b)    there is no criminal justice stay certificate or criminal justice stay warrant about the non-citizen;

any other law, or anything done under any other law, of the Commonwealth or a State (whether passed or made before or after the commencement of this section), not being an Act passed after that commencement expressed to be exempt from this section, does not prevent the removal or deportation.

(2)    Subsection (1) does not permit the removal or deportation of a non-citizen if that removal or deportation would be in breach of an order of the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).

55    There was no suggestion in the evidence that a criminal justice stay certificate or criminal justice stay warrant had been issued in relation to the applicant, and there was no court order that would give rise to the exception in s 153(2). It was plain, then, that s 198(5) required the removal of the applicant regardless of any Australian criminal charges pending against her.

56    I therefore concluded that the prosecution ground did not give rise to a serious case to be tried.

Balance of convenience

57    Since there was no serious case to be tried, it is unnecessary to comment on the balance of convenience at any length. Had I been required to do so, I would have placed significant weight on the drastic consequences for the applicant of removing her from Australia, including the fact that this would disqualify her from making a new application for a protection visa.

58    I would also have put weight on the public interest in seeing the respondents administer the Migration Act so that the legislative scheme may take its course: see CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [15], [80]. Of lesser weight, but still to be taken into account, would be the cost to the public purse of keeping the applicant in immigration detention, rather than removing her to Taiwan.

59    However, it would be an artificial and hypothetical exercise to reach a conclusion on the balance of convenience when there is no serious case to be tried, and where those two considerations are interdependent. I decline to do so.

Conclusion

60    The absence of any serious case to be tried led me to dismiss the application for an interlocutory injunction restraining the removal of the applicant from Australia.

Associate:

Dated:    15 October 2026