Telefoni v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1474
•8 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Telefoni v Minister for Immigration and Citizenship [2025] FedCFamC2G 1474
File number(s): SYG3134 of 2025 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 8 September 2025 Catchwords: MIGRATION – application for an injunction to restrain the Minister from exercising power of removal under s 198(5) of the Migration Act 1958 (Cth) pending the determination of an application for review to the Administrative Review Tribunal of a decision not to grant a Bridging E visa on character grounds – whether the operation of s 198(5) is suspended or deferred for such time as is necessary for the application for review to be determined – operation of s 198(5) not suspended – application for an injunction is dismissed. Legislation: Constitution s 75(v)
Migration Act 1958 (Cth) ss 14,137K, 189(1), 194, 195, 195A, 198, 476(1), 501
Migration Regulations 1994 (Cth) cl 050.212(3)(b) of Sch 2
Cases cited: Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5
Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177
Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620
ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 548
Division: General Number of paragraphs: 45 Date of hearing: 1 and 5 September 2025 Place: Sydney Solicitor for the Applicant: Ms L Konara of Immigration Solutions Counsel for the Respondent: Ms R Francois Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG3134 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TEVITA FATAI TELEFONI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
8 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The proceeding is dismissed.
2.Subject to order 3, the applicant pay the respondent’s costs.
3.The parties have liberty to apply within 28 days for an order varying or discharging order 2, and for an order fixing the amount of a party’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
At around 11.45 am on 1 September 2025 there came before me as duty judge an application by the applicant for an interlocutory injunction to restrain the respondent (Minister) from removing the applicant from Australia. At the time of the hearing the applicant was going to be placed on an aircraft that was scheduled to depart Australia at 2.15 pm on that day.
The applicant appeared by his lawyer, Ms Konara, and the Minister appeared by his counsel, Ms Francois. After hearing submissions, I adjourned the matter for half an hour to determine whether I could form a sufficiently certain understanding of the grounds on which the interlocutory injunction was sought and resisted to enable me to determine whether to grant or refuse to grant an injunction. In the limited time that was available to me, I was unable to form a sufficient understanding.
In those circumstances, when the hearing resumed, I informed the parties I was not in a position to reach a view one way or the other about whether an injunction should or should not be granted. I informed counsel for the Minister that, relying on the principle for which I consider Tait v The Queen stands as authority,[1] I proposed to grant an injunction unless the Minister gave an undertaking to the Court not to remove the applicant until I further heard and determined the application for an injunction. Ms Francois said she was instructed the Minister would give an undertaking. On the basis of that undertaking, I set down for hearing at 10.15 am on 5 September 2025 the applicant’s application for an injunction, and made directions for the parties to file evidence and submissions in advance of the hearing.
[1] Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620.
I heard the application for an injunction at 10.15 am on 5 September 2025, after which I reserved my judgment.
BACKGROUND
The applicant is a national of Tonga; he entered Australia in February 2014 holding a Subclass 600 tourist visa that was valid for three months. The applicant, however, remained in Australia after the three month period expired; and, in those circumstances, he became an unlawful non-citizen within the meaning of s 14 of the Migration Act 1958 (Cth) (Migration Act). In early 2015 the applicant met his now wife. The applicant and his wife started living together a few months later and, in October 2020, they married. The applicant and his wife have four children aged between around 10 and 4.
On 25 August 2024 the applicant was arrested and charged with assault occasioning actual bodily harm. The victim of the assault was the applicant’s wife. On his arrest the applicant was identified as an unlawful non-citizen; and was placed in immigration detention pursuant to s 189(1) of the Migration Act.[2] It appears that, when taken into detention, the applicant was given a notice under s 194 of the Migration Act, which provides:
As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:
(a) the provisions of sections 195 and 196; and
(b)if a visa held by the person has been cancelled under section 137J—the provisions of section 137K.
[2] Which provides: “If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.”
Section 195 of the Migration Act provides as follows:
(1) A detainee may apply for a visa:
(a)within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b)if he or she informs an officer in writing within those 2 working days of his or her intention to so apply—within the next 5 working days after those 2 working days.
(2)A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
By 2 September 2024 the applicant engaged lawyers who practice under the name “Immigration Solutions” (IS). On that day IS sent an email to the Department of Home Affairs (Department) informing it that IS had been instructed to act on behalf of the applicant, and enquiring whether the applicant had been given notice under s 194 of the Migration Act, and whether the applicant had informed the Department that he intended to lodge a subclass 820 visa on shore “as per section 195” of the Migration Act. IS further stated in their email that the applicant has an Australian citizen spouse, and “Australian citizen minor children”. IS stated they required the information they requested in the email “at the earliest to lodge a valid visa application”.
On 17 September 2024 the applicant, through IS, lodged an application for the grant of a Bridging E (Class WE) visa (Bridging E visa). To have been entitled to the grant of a Bridging E visa the applicant was required to satisfy the criteria prescribed by Division 050 of Schedule 2. One of those conditions is specified by cl 050.212(3)(b) of Schedule 2 to the Regulations, which provides that the Minister must be satisfied “that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia”. In his application for a Bridging E visa the applicant stated he intended to apply for the grant of a partner visa, and that his wife would act as a sponsor for that application.
On 20 September 2024 a delegate of the Minister refused to grant the applicant a Bridging E visa because the applicant did not meet the requirements of cl 050.212(3)(b) of Schedule 2. The delegate was of the view that the applicant could not apply for a partner visa because cl 050.212(3)(b) provided that a person in detention to whom a notice has been given under s 194 can only apply for a substantive visa (other than a protection visa) if the person makes an application within the time specified in s 195(1)(a), namely, within two working days after the day on which s 194 was complied with in relation to his detention.
On an application for review, the Administrative Appeals Tribunal (AAT) construed cl 050.212(3)(b) of Schedule 2 to the Regulations as permitting an applicant to apply for a substantive visa within such time as the Minister may allow. On the basis of this construction, and on its being satisfied that the applicant would apply, in Australia, within a period allowed by the Minister, for a substantive visa of a kind that can be granted if the applicant is in Australia, the AAT concluded the applicant met cl 050.212(3) of Schedule 2, and remitted the matter to the delegate. That occurred on 2 October 2024.
After the applicant’s application for a Bridging E visa was remitted to the delegate, the Department requested the applicant provide documents for referral to the Department’s Visa Applicant Character Consideration Unit. On 9 April 2025 the applicant received an intention to refuse to grant a Bridging E visa because the applicant does not pass the character test as provided for in s 501 of the Migration Act, which relevantly provides:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
. . . .
(6)For the purposes of this section, a person does not pass the character test if:
. . . .
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or . . .
In the meantime, on 25 March 2025 the applicant was given a “Notice of Intention to Remove From Australia” (Removal Notice). The Removal Notice stated that the applicant was liable for removal from Australia under s 198(2A) of the Migration Act, which provides:
An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a) the non‑citizen is covered by subparagraph 193(1)(a)(iv); and
(b)since the Minister’s decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and
(c)in a case where the non‑citizen has been invited, in accordance with section 501C or 501CA, to make representations to the Minister about revocation of the original decision—either:
(i)the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.
Subparagraph (iv) of s 193(1)(a) of the Migration Act relevantly provides:
Sections 194 and 195 do not apply to a person:
(a) detained under subsection 189(1):
. . . .
(iv)because of a decision the Minister has made personally under section 501 . . . to refuse to grant a visa to the person . . .
The Removal Notice stated that arrangements had been made for the applicant’s removal, and it was anticipated the applicant would be removed from Australia on 1 September 2025.
On 31 July 2025 a delegate of the Minister refused to grant the applicant a Bridging E visa because the applicant did not satisfy the character test for the purposes of s 501 of the Migration Act.
On 6 August 2025 the applicant lodged an application for review to the Administrative Review Tribunal (ART) of the delegate’s decision not to grant the applicant a Bridging E visa. On 25 August 2025 Ms Konara received a call from the applicant in which he stated that an officer from the Australian Border Force told him that he was going to be removed, and was on a “removal list”. The applicant did not inform, and had not previously informed, Ms Konara that he had received the Removal Notice. In ignorance of that fact, on 25 August 2025 Ms Konara sent an email to an email address associated with the Department in which Ms Konara communicated what the applicant had told her a case manager had told the applicant, and demanded that the Department “refrain from engaging in any unconscionable or threatening conduct towards detainees”.
The matter came before the ART for a directions hearing on 27 August 2025 near the conclusion of which the ART ordered that the application for review be listed for a “two (2) day in-person hearing” commencing at 9.30 am on 16 October 2025. The ART also made a number of directions. According to Ms Konara, the following occurred during the directions hearing:
On 27 August 2025, ART directions hearing was held with Senior Member Raif, Ms Frankel for the Minister and myself in attendance. During the directions hearing, we raised a concern that the Applicant has been receiving comments from Villawood staff and ABF officers that he is to be removed. . . . Senior Member Raif then requested that Ms Frankel to make enquiries regarding the Applicant’s removal. Senior Member Raif then requested that the Applicant attend in person for the hearing scheduled on 16th and 17th October 2025 and requested for Ms Frankel to arrange with the ABF his presence at the ART.
On 31 August 2025 Ms Konara sent an email to a number of email addresses, including an email address associated with Ms Frankel. Ms Konara made a number of allegations, including that Ms Frankel had given an undertaking that the Minister would not take steps to remove the applicant from Australia until the determination of his application for review before the ART. Ms Ng, a senior executive lawyer at the Australian Government Solicitor, responded by email sent on 1 September 2025 in which she stated that no undertaking had been given, but acknowledged that the issue of removal had been raised before the ART on 27 August 2025 “in respect of which Ms Frankel said she had no instructions, and would make inquiries”.
THE APPLICATION
The only relief the applicant seeks in his originating application is an injunction restraining “the Minister, by himself or by his Department, officers, delegates, or agents, from making the future decision or taking the other action the subject of the proceedings”. The originating application, however, states no grounds for claiming the injunction.
Applicant’s submissions
In his written submissions the applicant submits as follows:
(a)It is unclear whether the Minister relies on s 198(2A) of the Migration Act for the removal of the applicant, or on s 198(5) of the Migration Act, being the provision counsel for the Minister at the hearing on 1 September 2025 submitted is the power on which the Minister relies. Subsection 198(2A) does not apply because the decision not to grant the Bridging E visa was not made personally by the Minister.
(b)Since August 2024 the Minister has been aware that IS has been acting for the applicant, but at no stage did the Department provide the Removal Notice to IS. The Removal Notice should have been served on IS, given the applicant’s limited language proficiency.
(c)The Minister, through his lawyer, failed to inform the ART at the directions hearing that the applicant was due to be removed from Australia.
(d)The expression “reasonably practicable” in s 198 of the Migration Act should be interpreted as permitting removal only after a hearing before the ART has been finalised.
(e)If the applicant is removed he will no longer have any rights to being granted a Bridging E visa; and although it is the case that the applicant would be able to apply for a partner visa offshore; that would be subject to substantial delays to which he would not be subject if he were to make the application in Australia.
(f)If an injunction is not granted, and the applicant is removed from Australia, he will lose his ability to lodge an onshore partner visa application and, as a consequence, continue to reside in Australia and support his family. That will have a profound financial impact on his Australian citizen family.
Respondent’s submissions
The Minister, on the other hand, submits that no injunction should be granted because the Department’s officers who are seeking to remove the applicant from Australia are doing so pursuant to the obligation to remove that has accrued under s 198(5) of the Migration Act, and the applicant cannot demonstrate that the officers are seeking to perform their obligations unlawfully. The Minister relies on my judgment in ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs (No 2).[3] The Minister further submits:
(a)There was no procedural unfairness in the initial decision to remove the applicant.
(b)The applicant’s construction of s 198(5) of the Migration Act that it does not operate where ART proceedings are on foot has no basis in the clear text of the section, and the actual objects of the Migration Act as set out in s 4(4). Subsection 198(5) expressly operates even where a valid application for a bridging visa is pending.
(c)The applicant is seeking a Bridging E visa only to enable him to make an onshore application for a partner visa. There is no doubt the applicant can make that application from Tonga.
(d)The removal of the applicant from Australia would not amount to a legal or equitable wrong. Subsection 198(5) of the Migration Act makes clear that a pending valid bridging visa application is irrelevant to the consideration of “as soon as reasonably practicable”.
[3] ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 548.
PRELIMINARY QUESTIONS
There are five preliminary questions I need to address.
Relief the applicant seeks
The first concerns the relief the applicant seeks. In the originating application the applicant seeks an injunction to restrain the Minister from removing the applicant from Australia at any time. The injunction the applicant in fact seeks, however, is more limited; it is to restrain the Minister from removing the applicant from Australia until such time as his application for review before the ART in relation to the Minister’s decision not to grant the applicant a Bridging E visa is determined. That follows from the submission the applicant makes in his written submissions, namely, that “reasonably practicable” in s 198 of the Migration Act should be interpreted as permitting removal only after a hearing before the ART has been finalised. The applicant, therefore, is to be taken to be applying for an injunction that the Minister be restrained from removing the applicant from Australia until such time as his application for review to the ART is determined.
Nature of the injunction the applicant seeks
The second preliminary question relates to the nature of the injunction the applicant seeks. As I have already noted, the only relief the applicant claims is an injunction. Given the jurisdiction s 476(1) of the Migration Act confers on this Court,[4] it must be taken that the applicant seeks a constitutional injunction, that is, an injunction pursuant to s 75(v) of the Constitution. A constitutional injunction is granted to ensure that all “officers [of the Commonwealth] obey the law and neither exceed nor neglect any jurisdiction which the law confers on them”.[5] A necessary, although not sufficient condition, therefore, for the grant of a constitutional injunction, is that, unless restrained, an officer of the Commonwealth will engage in conduct the will exceed the power purportedly pursuant to which the officer proposes to engage in the conduct.[6]
[4] Subsection 476(1) of the Migration Act provides that, subject to the exceptions provided for in s 476, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. Paragraph 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in “which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”.
[5] Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177, at [97].
[6] ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 548, at [59].
Provisions pursuant to which the applicant is being sought to be removed
A third preliminary question relates to the power purportedly pursuant to which the Minister, through the Department’s officers, is seeking to remove the applicant from Australia. That question arises because the Removal Notice represented that the applicant was liable to be removed from Australia under s 198(2A) of the Migration Act, whereas at the hearing before me, counsel for the Minister submitted that it is by operation of s 198(5) of the Migration Act that the applicant is liable to be removed from Australia. That subsection provides as follows:
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.
There can be no doubt that the circumstances of the applicant’s detention have engaged s 198(5) of the Migration Act; and it is pursuant to that subsection that officers of the Department intend to take steps to remove the applicant from Australia.
Question for determination and MZAPC
The fourth preliminary question relates to the identification of the question for determination that arises on the applicant’s application for an injunction.
The injunction the applicant seeks is directed to restraining the Minister, by his officers and agents, from taking steps to remove the applicant from Australia pursuant, or purportedly pursuant to s 198(5) of the Migration Act. As I have already noted, the applicant submits that “as soon as reasonably practicable”, as that expression appears in s 198(5), is to be interpreted as permitting removal only after a hearing before the ART has been finalised. The question for determination, therefore, is whether s 198(5) of the Migration Act is subject to the limitation to which the applicant submits s 198(5) is subject, namely, that it cannot apply until after the applicant’s application for review to the ART in relation to the delegate’s decision not to grant the Bridging E visa is determined.
Although the applicant did not refer to it, his submission that “as soon as reasonably practicable” is to be interpreted as permitting removal only after a hearing before the ART has been finalised, invites consideration of observations justices of the High Court made in Minister for Immigration and Multicultural Affairs v MZAPC about the construction of the expression “reasonably practicable” in s 198(6) of the Act.[7] It will therefore be necessary to refer to the judgments in that case.
[7] Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5.
In MZAPC an applicant who was liable to be removed from Australia pursuant to s 198(6) of the Act applied to the Federal Court of Australia for an order that the Minister be restrained from removing the applicant from Australia pending the determination of a proceeding the applicant brought in that Court for a declaration that the Minister had exceeded the statutory limit on executive power imposed by s 195A of the Act. Subsection 198(6) provides as follows:
An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a) the non‑citizen is a detainee; and
(b)the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(ii)the visa cannot be granted; and
(d)the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
The applicant applied for an interlocutory injunction even though he did not challenge the valid application of s 198(6) of the Migration Act to him. In other words, the applicant sought the interlocutory injunction even though he did not claim that by seeking to remove the applicant pursuant to s 198(6) the officers of the Department would be acting unlawfully, or without authority.
Two principal questions arose for the High Court’s determination. The first was whether an interlocutory injunction restraining the applicant’s removal from Australia could be granted in circumstances where the applicant did not seek final relief in terms of any such injunction. A majority of the High Court held that the Federal Court had the power to grant an interlocutory injunction in those circumstances if the granting of such injunction was necessary to preserve the subject matter of the proceeding before it; and the High Court further held that, in the circumstances of that case, the Federal Court’s granting of an interlocutory injunction was necessary for that purpose.
The second question concerned the operation of s 198(6) of the Act in circumstances where the Federal Court (or any other federal court with jurisdiction) exercises the power to restrain the Minister from acting pursuant to s 198(6) of the Act. The question was whether the application of s 198(6) was to be construed as being subject to the power of a federal court to grant an injunction to preserve the subject matter of a proceeding before it, and if so, the basis on which s 198(6) was to be so construed.
In MZAPC the Minister accepted that the power and obligation under s 198(6) of the Act was liable to yield to the operation of s 195A of the Act in the sense that the operation of s 198(6) could be “postponed or suspended or deferred”.[8] In particular, the Minister submitted that s 198(6) was liable to yield in a case where the Minister makes a “procedural decision” to consider the exercise of the Minister’s personal and non-delegable power under s 195A, not because it was for that reason “not reasonably practicable” for an officer to remove the person, but only because s 198(6) of the Act is to be construed as subject to an implied exception where such a “procedural decision” has been made. The Minister submitted, however, that no such procedural step had been taken; and, for that reason, the power and duty in s 198(6) was not “postponed or suspended or deferred”, but “applied according to the terms of the provision”.[9] In those circumstances, that is, where no implied exception to the operation of s 198(6) applied, the power and duty of an officer to remove a person in the specified circumstances “as soon as reasonably practicable” contemplated only the practical capacity of removal, not any other circumstances.[10]
[8] Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5, at [21].
[9] Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5, at [21].
[10] Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5, at [21].
The plurality concluded that s 198(6) of the Migration Act “yields to the fact of the grant of the interlocutory injunction to prevent frustration of the proceeding”.[11] The plurality arrived at this conclusion in part because of broader considerations of the construction of the Migration Act:[12]
Section 198(6) of the Migration Act is to be construed “by reference to the language of the [Act] viewed as a whole”, and “so that it is consistent with the language and purpose of all the provisions of the” Act. The Migration Act is also to be construed “on the prima facie basis that its provisions are intended to give effect to harmonious goals”, so that “[w]here conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”, and “so far as possible to operate in harmony and not in conflict” with other legislation enacted by the Commonwealth Parliament.
[11] Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5, at [39]. Parliament has purported to reverse the effect of MZAPC by enacting s 197E of the Migration Act.
[12] Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5, at [33] (footnotes omitted).
Edelman J also considered the meaning of “reasonably practicable” in s 198(6) of the Migration Act:[13]
The usual meaning of practicable is “capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible”. In the application of that meaning, there is considerable flexibility in the elastic notions of reason or prudence, as well as feasibility. That flexibility requires that regard be had to statutory and non-statutory executive powers related to the potential removal. Hence, in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Kenny and Mortimer JJ rightly said that the concept of “reasonably practicable” in s 198 “is to be understood as allowing for the duties in s 198 to remove a person to be performed in a way which accommodates other aspects of the statutory scheme of the Migration Act, and—for that matter—other relevant and non-statutory exercises of executive power”.
[13] Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5, at [66] (footnotes omitted).
Relevance of principles governing interlocutory injunctions
The fifth preliminary question relates to the extent, if any, that the principles that govern the granting of interlocutory injunctions apply to the granting of a constitutional injunction.
The Court may grant an interlocutory injunction pending the hearing and determination of an application for a constitutional injunction; and the principles governing the granting of interlocutory injunctions would apply to applications for such injunctions in aid of an application for a constitutional injunction. But the principles governing the grant of an interlocutory injunction are not relevant to whether a constitutional injunction should be granted. Whether a constitutional injunction should be granted turns on whether the Court finds that an officer proposes to act unlawfully, and, if so, whether there are any discretionary considerations against the granting of an injunction.
DETERMINATION
At the hearing on 5 September 2025 I drew to the Minister’s counsel’s attention the submissions the Minister made in MZAPC, and to the judgment of the plurality in that case, and I asked whether the reasoning underlying the submissions the Minister made in MZAPC, and the reasoning underlying the plurality’s observations in relation to the “reasonably practicable” qualification in s 198(6) applied to the circumstances of the case before me. Counsel submitted that that reasoning did not apply; and that is because s 198(5) of the Migration Act is unambiguously expressed to apply “regardless of whether the non‑citizen has made a valid application for a bridging visa”. That, counsel submitted, unequivocally eliminates the possibility of a person’s having made a valid application for a bridging visa giving rise to an implied exception to the operation of s 198(5); that is, as constituting a reason for postponing, or suspending, or deferring the operation of s 198(5) of the Migration Act for such period as will be required for determining whether a bridging visa should be granted.
I accept counsel’s submission. Subsection 198(5) of the Migration Act makes it as clear as language is capable of making it clear that an officer must remove as soon as practicable an unlawful non-citizen if that person is a detainee, and has neither applied for a substantive visa in accordance with s 195(1) nor applied under s 137K for the revocation of the cancellation of a substantive visa, even where the non-citizen has made a valid application for a bridging visa.
Ms Konara submitted that although the subject of the application for review before the ART is an application for the grant of a bridging visa, the applicant has made that application so that he can be released from detention and, once released, apply for a substantive visa, namely, a partner visa. Ms Konara submitted that the applicant cannot make such application while he is in detention because the applicant did not, after he was taken into immigration detention, make an application for a partner visa within the time provided for by s 195 of the Migration Act. All of this may be accepted; but it does not alter the fact that the only visa the applicant has applied for is a bridging visa; and s 198(5) applies, notwithstanding the applicant’s having applied for a bridging visa.
I am satisfied that s 198(5) of the Act applies to the applicant; that officers of the Department are obliged to take steps to remove the applicant from Australia; and that neither the Minister, nor his officers or agents, would be acting beyond their power under s 198(5) of the Migration Act if they were to take steps to remove the applicant from Australia. The applicant’s application for a constitutional injunction, therefore, fails
If I were to have treated the application before me as one for the grant of an interlocutory injunction, I would have dismissed that application. The reason is that I would not have been satisfied there is a prima facie case, or a serious question to be tried, that, in taking steps to remove the applicant from Australia, the Minister would be acting beyond the power conferred by s 198(5) of the Migration Act.
DISPOSITION
I propose to dismiss the proceeding. I will also order that the applicant pay the Minister’s costs, but subject to the parties having liberty to apply to vary or discharge the orders for costs I propose to make, and also to fix the amount of costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 8 September 2025
1
5
3