Federal Court of Australia

LJMH v Minister for Immigration and Citizenship [2026] FCA 1710

ORDERS

THE COURT ORDERS THAT:

1.    The Commonwealth of Australia be joined as the third respondent in this proceeding.

2.    The first and third respondents including by their officers, servants and delegates be restrained from removing the applicant from Australia until determination of this proceeding or until further order.

3.    This proceeding is to be expedited.

4.    Costs are to be reserved.

5.    There be liberty to apply

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

REASONS FOR JUDGMENT

BURLEY J:

1    On 9 June 2026 the general duty judge was approached by the applicant with an interlocutory application seeking to enjoin the Commonwealth of Australia and to restrain the Commonwealth and the Minister for Immigration and Citizenship from removing him from Australia until determination of the proceedings or further order. The general duty judge that week made consent orders providing for the filing of written submissions and evidence, with the matter listed before me as the next week’s general duty judge.

2    The matter came before me on 17 June 2026. The matter was urgent at that point because the applicant is a stateless refugee from Myanmar who has resided in Australia since June 2013. The Minister proposed to remove him from Australia to Nauru (now known as the Republic of Naoero) on 19 June 2026.

3    I heard argument from the parties and concluded that the Commonwealth and the Minister should be restrained from removing the applicant from Australia pending determination of the proceedings that the applicant had instituted seeking an extension of time to apply to review a decision of the Administrative Review Tribunal. After I informed the parties of the outcome of the application at the hearing, I inquired as to whether they required me to give reasons for the decision. The respondents indicated that they did not want reasons.

4    Subsequently, my chambers received an email communication from the solicitors representing the applicant, seeking published reasons.

5    Having regard to the applicant’s success in the application, there can be no question that the giving of reasons would be of relevance to any appeal, the Minister and the Commonwealth having not joined in the request for reasons.

6    There is no doubt that there is a duty on the court to give reasons to enable the case to be properly and sufficiently laid before an appellate court: Pettitt v Dunkley [1971] 1 NSWLR 376 at 388 (Moffitt JA, Asprey JA agreeing generally at 384, Manning JA agreeing at 385).

7    In Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 the Court considered Pettitt at 666-7 and said, per Gibbs CJ (Wilson J, Brennan J, Deane J, Dawson J agreeing):

That does not mean that a judicial officer must give his reasons in every case; it is clear, to use some of the words of Woodhouse P. in Reg. v. Awatere (61), that there is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Nevertheless, it is no doubt right to describe the requirement to give reasons, as Mahoney J.A. did in Housing Commission (N.S.W) v. Tatmar Pastoral Co.(62), as "an incident of the judicial process", subject to the qualification that it is a normal but not a universal incident.

(Footnotes omitted.)

8    In Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54]–[58] (French CJ and Kiefel J) the High Court noted that:

Reasons for decision and the essential characteristics of a court

54.    The centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised. In a passage from the first edition of Broom's Constitutional Law, published in 1866, the author said (162):

"A public statement of the reasons for a judgment is due to the suitors and to the community at large – is essential to the establishment of fixed intelligible rules and for the development of law as a science … A judgment once delivered becomes the property of the profession and of the public; it ought not, therefore, to be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it."

    That passage was said in the Supreme Court of Victoria to have "general application to all persons exercising judicial functions"(163). Its universality was qualified in Public Service Board of New South Wales v Osmond (164) by Gibbs CJ, who said that there was no "inflexible rule of universal application" that reasons be given for judicial decisions. His Honour, however, accepted that the requirement to give reasons is "an incident of the judicial process" (165).

55.    The duty upon judges to give reasons for their decisions has often been linked to the availability of rights of appeal against those decisions (166). A wider rationale, foreshadowed in the passage quoted from Broom, can be derived from the nature of the judicial function. In Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (167), Mahoney JA, after referring to the importance of reasons for decision to the effective exercise of appeal rights, said (168):

“But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process.”

    The proposition that the provision of reasons for decision is an aspect of the judicial function has been supported by other decisions of the Supreme Courts of New South Wales, Victoria and Queensland (169).

56.    Gummow J in Grollo described the essential attributes of the judicial power of the Commonwealth in familiar terms by reference to the resolution of justiciable controversies by ascertainment of the facts, application of the law and the exercise where appropriate of judicial discretion, adding “which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning” (170). Heydon J in AK v Western Australia (171) described the duty of judges to give reasons for their decisions after trials and in important interlocutory proceedings as “well-established”. His Honour adopted as a summary of the objectives underlying that duty an extra-curial statement by Gleeson CJ (172):

“First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions.”

    The duty does not apply to every interlocutory decision, however minor. Its content – that is, the content and detail of the reasons to be provided – will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.

57.    The connection between the duty to give reasons and the nature of the judicial power enunciated in Grollo, and the objectives which that duty serves, explained in AK, marks the duty as an incident of the judicial function whether or not the court making the relevant decision is subject to appeal. In the case of the Supreme Court of a State, the duty has a constitutional character. That constitutional character derives from the jurisdiction of this Court under s 73 of the Constitution to hear appeals from all judgments, decrees, orders and sentences of the Supreme Courts of the States.

58.    The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.

(Footnotes omitted.)

9    In the present case the applicant’s representatives contacted my chambers seeking reasons. The decision which he sought was an indication of the basis for allowing the interlocutory application in circumstances where his rights had been preserved and the matter was to be allocated to a docket judge to determine his application for an extension of time on a final basis.

10    The principles governing the grant of interlocutory relief are not controversial. The Court has power to protect the integrity of its own processes by interlocutory order restraining officers from removing an unlawful non-citizen, whether the proceeding challenges the valid application of the removal power or not: Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; 421 ALR 483 at [4] (Gageler CJ, Gordon, Gleeson and Jagot JJ). The applicant needs to establish a prima facie case and that the balance of convenience favours the interlocutory relief being granted: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65] (Gummow and Hayne JJ), these two enquiries being interrelated.

11    I determined, on the facts as presented at the hearing, that the interrelated matters warranted the grant of the interlocutory injunction sought. The circumstances of this case do not rise above the application or accepted principles to the particular facts. Having regard to the nature of the case and the fact that another judge of the Court will be determining the rights of the applicant on the basis of a full hearing of his application for an extension of time, I do not consider that it is necessary or appropriate to give any further or more substantial reasons than those set out above.

Associate:

Dated:    13 November 2026