BHRR v Minister for Immigration and Citizenship [2025] FCA 1369

If you wish to have the decision reviewed, you must lodge your application for review within nine (9) days after the day on which you are taken to be notified of the decision. If you have an authorised recipient who is authorised to receive documents relating to the revocation of the original decision on your behalf, you are taken to be notified when your authorised recipient is taken to be notified of the decision.

As you do not have an authorised recipient who can receive documents on your behalf, and as this letter was sent to you by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to which the letter was posted.

1. The period of nine days referred to in the letter reflected the nine-day period provided for by s 500(6B) of the Act within which an application to the Tribunal must be lodged. The period of seven working days reflected the period prescribed by reg 2.55(7)(a) of the Migration Regulations as the period after which a person is taken to have received a document that was dispatched by prepaid post from a place in Australia to an address in Australia.
2. The applicant did not lodge an application for review with the Tribunal within nine days after the period of seven working days from the date of the letter. Instead, the applicant lodged an application with the Tribunal more than three years later, on 8 November 2022. An issue arose as to whether the Tribunal had jurisdiction to hear the application for review. That issue arose because the Tribunal had no power to extend the time fixed by s 500(6B) of the Migration Act for lodging the application for review: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; 267 FCR 15.
3. On the question of the Tribunal's jurisdiction, the applicant was legally represented before the Tribunal. The applicant argued on two grounds that the notice of the delegate's decision that was given to him was not given in the prescribed manner. The first ground was that the delegate was required to give the notice to the applicant's authorised recipient but failed to do so. The second ground was that sending the notice to the locked bag for Barwon Prison did not amount to sending the notice to a residential address, business address, or post box address as provided for by reg 2.55(3)(c). The Tribunal rejected both grounds and held that because the application for review was out of time, it did not have jurisdiction to review the delegate's decision: BHRR and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 3199 (10 October 2023). The applicant did not at that stage make any application for judicial review of the Tribunal's decision.
4. The applicant completed his terms of imprisonment in September 2021 and was taken into immigration detention. Subsequently, in November 2023 and following the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 the applicant was released into the community on a bridging visa known as a "BVR". This is a type of visa that is subject to special conditions and ceases upon the Minister giving notice that he is satisfied that removal of the visa holder from Australia is reasonably practicable, or upon the Minister giving notice that s 76AAA of the Act applies, which is engaged where the holder of a BVR is granted permission by a foreign country that is a party to a third country reception arrangement within the meaning of s 198AHB of the Act to enter and remain in that country.
5. On or about 29 August 2025, the Commonwealth and the Republic of Nauru entered into a final arrangement concerning the removal of _NZYQ-_affected non-citizens, including the applicant, to Nauru. It is accepted that this arrangement is a third country reception arrangement with the Commonwealth within the meaning of s 198AHB of the Act.
6. On 1 October 2025, the Republic of Nauru granted the applicant a long term stay visa.
7. On 6 October 2025, the applicant was notified of the grant of a visa to enter and reside in Nauru and of the cessation of his BVR.
8. On 7 October 2025, the applicant was detained because there was a real prospect of his removal to Nauru.
9. On 10 October 2025, Refugee Legal on behalf of the applicant wrote to the Minister seeking that he exercise the power under s 48B of the Act and permit the applicant to lodge a further application for a protection visa. The request was premised on the applicant being at imminent risk of removal from Australia to the Republic of Nauru. The request stated that there was a real chance that the applicant would be subject to severe harm in Nauru based on his religion and membership of various social groups and claimed that he was at risk of "chain refoulement" from Nauru to Afghanistan. The request stated that these matters would likely lead to a protection finding for the purposes of s 197C(6) of the Act. Several other claims were made in the request on behalf of the applicant.
10. On 14 October 2025, the applicant was given a notice of intention to remove him from Australia.
11. On 21 October 2025, Refugee Legal on behalf of the applicant filed with the Court an application for an extension of time within which to lodge an application for review of a migration decision. The extension was sought under s 477A(2) of the Migration Act. An affidavit in support annexed a proposed originating application for review of a migration decision which sought judicial review of the Tribunal's decision of 10 October 2023 and sought an order that a writ of certiorari issue quashing that decision and a writ of mandamus issue directing the Tribunal (now the Administrative Review Tribunal) to redetermine the applicant's application according to law.
12. On 3 November 2025, the applicant's solicitors were informed that the applicant's removal from Australia was scheduled to occur on 11 November 2025.

The grounds of the proposed originating application

1. The grounds of the proposed originating application do not challenge the Tribunal's reasons for holding that it lacked jurisdiction. Instead, the proposed application, as amended, raises two other grounds.

1. The first ground is in the following terms, where the delegate's letter to the applicant dated 20 August 2019 is referred to as "the purported notification letter" -

The purported notification letter did not "state[] the time in which the application for review may be made" to the Tribunal within the meaning of s 501G(a)(f)(ii) [sic] of the Act, because:

(i) it stated that the applicant must "lodge [his] application for review within nine (9) days after the day on which [he was] taken to be notified of the decision" and that "as this letter was sent to you by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this letter";

(ii) the seventh working day after the date of the letter fell on Thursday, 29 August 2019;

(iii) the ninth day after the applicant was taken to have received the document would have, but for the operation of s 36(2) of the Acts Interpretation Act 1901 (Cth), have fallen on Saturday, 7 September 2019; and

(iv) the purported notice failed to set out the effect of s 36(2) of the Acts Interpretation Act 1901 (Cth) and failed to otherwise sufficiently clearly convey to the applicant the endpoint of the period in which the "application for review may be made", which was Monday 9 September 2019.

1. The applicant claims that because he was not notified of the delegate's decision in accordance with s 501G(1) of the Act, the time for applying to the Tribunal has not commenced to run, and that his application to the Tribunal that was lodged on 8 November 2022 was within time. In support of this claim, the applicant cited DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; 270 FCR 492 (DFQ17) at [57]-[59] (Perram J) to support a submission that the statement in the notification must be clear and complete. The applicant relied on the failure of the letter to refer to the effect of s 36(2) of the Acts Interpretation Act 1901 (Cth) in stating the time in which the application for review may be made.
2. The applicant submitted that it was not necessary to show that any defect in the notification of the delegate's decision was material to the applicant's failure to engage the Tribunal's review jurisdiction earlier than he did, citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46; 284 FCR 62 (Parata) at [58]-[81] and [97] (Charlesworth and Jackson JJ). In Parata, their Honours distinguished Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627 on the ground that it did not concern an erroneous denial of jurisdiction, but concerned the consequences of the Tribunal's non-compliance with statutory procedures in the conduct of a review where jurisdiction had been properly invoked. Their Honours also distinguished SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; 185 FCR 129 (SZOFE) on the ground that it was a case where it was claimed that jurisdiction had been wrongly assumed rather than wrongly denied. Buchanan and Nicholas JJ held in SZOFE that the jurisdiction which the Tribunal in fact assumed and purported to exercise was not affected by the claimed invalidity in the notification of the delegate's decision to cancel the respondent's visa.
3. Subject to obtaining an extension of time within which to seek judicial review of the Tribunal's decision, the fact that the applicant did not raise this argument before the Tribunal does not necessarily preclude his claim for a remedy on the ground of jurisdictional error having regard to the fact that the Tribunal declined to exercise jurisdiction: see generally, Kuswardana v Minister for Immigration & Ethnic Affairs [1981] FCA 64; 35 ALR 186 at 195 (Bowen CJ).
4. Section 476A of the Act has the effect that this Court has jurisdiction in relation to a decision or purported decision of the Administrative Appeals Tribunal (as it then was) on review under s 500 of the Act. Under s 477A of the Act, an application to the Court for a remedy was required to be made within 35 days of the Tribunal's decision. The applicant is almost two years out of time to bring an application to the Court in relation to the Tribunal's decision of 10 October 2023.
5. The Court has power under s 477A(2) to extend the 35 day time period if: (a) an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. The principles relating to the exercise of the power under s 477A were stated by Kiefel CJ, Gageler, Keane and Gleeson JJ in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Tu'uta Katoa) at [11]-[13]. There are no mandatory relevant considerations other than the "interests of the administration of justice". The Court may look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice: Tu'uta Katoa at [12].
6. The Minister cited Vella v Minister for Immigration and Border Protection [2015] HCA 41; 326 ALR 391, which concerned the corresponding power of the High Court under s 486A(2)(b) of the Migration Act to extend the 35-day period in which an application to the High Court must be made for a remedy in relation to a migration decision. At [3], Gageler J acted upon an acceptance by the applicant in that application that a delay of 16 months meant that the court could be satisfied that an extension of time was necessary in the interests of justice only if the applicant's case was "exceptional", citing Re Commonwealth; Ex parte Marks [2000] HCA 67; 177 ALR 491 at [13] (McHugh J) and Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 481 (McHugh J).
7. Here, the applicant's application for an extension of time filed 21 October 2025 stated that the grounds of the application were set out in the accompanying affidavit. The accompanying affidavit was of the applicant's solicitor. Under the heading, "Reasons for delay in bringing this application", the solicitor deposed -

In addition to the matters set out by me above, I am informed by the Applicant and believe that English is his second language, that he is illiterate, that he is not legally trained, and that he does not have sufficient assets or funds to afford private legal fees. I am further informed by the Applicant and believe he did not bring an application to challenge the Administrative Appeal Tribunal's [decision] of 10 October 2023 because he was unable to obtain free legal assistance for an appeal and could not afford to pay for legal assistance.

1. The other matters set out in the affidavit do not in terms state additional reasons why the applicant considers it is necessary in the interests of justice to extend time. However, taking a beneficial approach, the affidavit refers to the applicant having been diagnosed with major depressive disorder and post-traumatic stress disorder in 2007, and to a claim that he continues to experience symptoms he associates with those diagnoses. The affidavit also referred to information that the applicant engaged in counselling sessions with the Victorian Foundation for Survivors of Torture Inc while he was in immigration detention prior to his release into the community in 2023 and that he continued those sessions upon his release into the community. The affidavit referred to the opinion of a treating counsellor that the applicant suffers from serious mental health issues requiring face-to-face treatment and support, and to claims by the applicant that he suffers some physical ailments, including a back injury and a neck injury.
2. In addition, the proposed originating application annexed to one of the affidavits in support set out particulars of the grounds on which an extension of time is sought on the basis that the extension was necessary in the interests of justice. Those grounds included that at all times the applicant has had no financial capacity to engage a lawyer to assist him on a private basis, and that the applicant was unable to obtain free legal assistance to "appeal" the Tribunal's decision and had no understanding or ability to "appeal" the decision himself.
3. The Minister submitted that the applicant's claim that the notification letter was ineffective should be rejected. For the purposes of the interlocutory application, the Minister accepted that the word "state" in s 501G(1)(f)(ii) of the Act required the Minister to set out information about the time in which an application for review may be made "which is not only complete ... but clear as well", citing Perram J in DFQ17.
4. The Minister submitted that there was no requirement that the delegate's notification state the effect of s 36(2) of the Acts Interpretation Act, submitting that the notification provided the applicant with sufficient information to determine the date by which an application could be made to the Tribunal and information to clarify that date. It was submitted that any complexity which existed in determining the date by which an application for review may be made was the result of the terms of the Migration Act and the Migration Regulations and their interaction with the Acts Interpretation Act, citing BMY18 v Minister for Home Affairs [2019] FCAFC 189; 271 FCR 517 at [19] (Reeves, Perram and Charlesworth JJ), which concerned a corresponding requirement in s 66(2)(d)(ii) of the Act. The Minister submitted that the notice under s 501G(1) needed to provide the person sufficient information to determine correctly the period in which an application for review may be made, and that it did so.

1. The applicant advanced an amended proposed originating application in which he seeks to raise arguments akin to those raised and rejected in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 (Moshinsky J) (TCXM).
2. On 29 September 2025, Gageler CJ ordered pursuant to s 40 of the Judiciary Act 1903 (Cth) that an appeal from the orders of Moshinsky J in TCXM be removed into the High Court of Australia and it has been fixed for hearing on 9 December 2025 (TCXM v Minister for Immigration and Citizenship & Anor (S146/2025).
3. By the additions to the proposed originating application the applicant seeks a writ of certiorari cast as follows -

A writ of certiorari quashing the purported legal effects under ss 76AAA(1)(c) and/or 198AHB(1) of the Migration Act of the Final Arrangement Decision, being the decision made by the First Respondent made on around 29 August 2025 to enter into a final third country reception arrangement ("Final Arrangement") with Nauru on behalf of the Third Respondent ("Commonwealth").

1. The applicant also proposes other ancillary remedies, namely a declaration, an injunction and a writ of prohibition. In support of the TCXM ground, one of the applicant's solicitors deposes that she has been informed by the applicant, and believes, that he was not invited to be heard or to object to entry into the third country reception arrangement before it was entered into on or around that date, and that had he been given an opportunity to be heard, he would have opposed the decision because he does not want to be removed to Nauru.
2. In TCXM Moshinsky J held at [118] that the decision to enter into the interim arrangements between the Commonwealth and Nauru that was the subject-matter of that proceeding occurred in the exercise of non-statutory executive power or capacity. Moshinsky J went on to hold at [130]-[131] that there were insuperable difficulties in applying the principles of procedural fairness to such a decision, which involved the negotiation of an agreement with a foreign power at the highest levels of government.
3. In this proceeding, the applicant seeks to challenge the final arrangements that were entered into between the Commonwealth and Nauru. The applicant claims that the decision to enter into those arrangements was pursuant to a statutory power or function, namely s 198AHB(1) of the Act. The applicant claims that the decision was subject to an implied condition to afford procedural fairness to the applicant. In the alternative, the applicant claims that if the decision was made pursuant to non-statutory power, then the exercise of that power was also conditioned on affording procedural fairness to the applicant. The applicant claims that in either case the decision to effect the final arrangements affected his interests because an effect of the decision was that the applicant would be given a notice under s 76AAA of the Act (which he has been), which, if having statutory force, would result in his detention and then removal to Nauru, each of which affected his interests, including his right to liberty, life, health, privacy, and freedom of movement, as well as his interest in continuing to hold a BVR and other relevant interests.
4. The amended written submissions of the appellant TCXM in the High Court are in evidence. On appeal the appellant submits that Moshinsky J was in error in concluding that the decision to enter into the interim arrangements was not under statute and was in error in concluding that the decision was not conditioned on affording procedural fairness to TCXM. In the alternative, TCXM has submitted that if the power was non-statutory, it was conditioned by a justiciable procedural fairness requirement.
5. Following the decision at first instance in TCXM, and after the appeal was filed, and before it was removed to the High Court, the Migration Act was amended by the Home Affairs Legislation Amendment (2025 Measures No 1) Act 2025 (Cth) (the Amending Act), which added s 198AHAA. The amendments commenced on 6 September 2025. Section 198AHAA provides, as its heading states, that the rules of natural justice do not apply in relation to third party country arrangements -

198AHAA Rules of natural justice do not apply in relation to third country reception arrangements

Entering into third country reception arrangements

(1) The rules of natural justice do not apply to an exercise of the executive power of the Commonwealth to:

(a) enter into a third country reception arrangement with a foreign country; or

(b) do anything preparatory to entering into a third country reception arrangement with a foreign country.

Note: The following are examples of things that are preparatory to entering into a third country reception arrangement with a foreign country:

(a) drafting the arrangement;

(b) negotiating and settling the terms of the arrangement with the foreign country;

(c) providing information to the foreign country about non-citizens who may be transferred to the foreign country under the arrangement (whether or not those non-citizens are of a kind mentioned in subsection 198AAA(1));

(d) adopting the arrangement.

Things done in relation to third country reception arrangements

(2) The rules of natural justice do not apply to the doing of a thing in relation to a third country reception arrangement with a foreign country, including in relation to the third country reception functions of a foreign country.

Note: The following are examples of things done in relation to a third country reception arrangement with a foreign country or the third country reception functions of a foreign country:

(a) the things mentioned in subsection 198AHB(2);

(b) an officer of the Department applying for a non-citizen to be granted permission by a foreign country to enter and remain in that country for the purposes of section 76AAA.

(3) For the purposes of subsection (2), it does not matter whether:

(a) the Commonwealth does the thing by exercising its executive power; or

(b) any of the following do the thing by exercising statutory power under a provision of this Act:

(i) the Commonwealth;

(ii) the Minister, or a delegate of the Minister;

(iii) an officer of the Department.

(4) In this section:

third country reception arrangement has the meaning given by section 198AHB.

third country reception functions has the meaning given by subsection 198AHB(5).

1. Clauses 9 and 10 of Schedule 1 of the Amending Act contain application and validation provisions in the following terms -

(1) The amendments of sections 198AAA, 199C and 501M of the Migration Act 1958 made by Division 1 of this Part apply to an exercise of power done before, on or after commencement.

(2) Section 198AHAA of the Migration Act 1958, as inserted by Division 1 of this Part, applies to:

(a) a third country reception arrangement entered into with a foreign country before, on or after commencement; and

(b) anything done preparatory to entering into a third country reception arrangement with a foreign country before, on or after commencement, whether the arrangement was entered into before, on or after commencement; and

(c) a thing done in relation to a third country reception arrangement, including in relation to the third country reception functions of a foreign country, before, on or after commencement, whether the arrangement was entered into before, on or after commencement.

(1) This item applies if a thing done, or purportedly done, before commencement is:

(a) covered by subitem (2); and

(b) would, apart from this item, be wholly or partly invalid only because the rules of natural justice were not observed in doing, or purporting to do, the thing.

(2) For the purposes of paragraph (1)(a), a thing is covered by this subitem if any of the following apply:

(a) the thing done was entering into, or purportedly entering into, a third country reception arrangement with a foreign country;

(b) the thing done, or purportedly done, was done preparatory to entering into a third country reception arrangement with a foreign country;

(c) the thing was done, or purportedly done, in relation to a third country reception arrangement with a foreign country, including in relation to the third country reception functions of a foreign country;

(d) the thing is, or is purportedly, an exercise of power under section 198AAA, 199C or 501M of the Migration Act 1958.

(3) For the purposes of paragraphs (2)(a), (b) and (c), it does not matter whether the thing is done, or purportedly done, by:

(a) the Commonwealth as an exercise of its executive power; or

(b) any of the following as an exercise of statutory power under a provision of the Migration Act 1958:

(i) the Commonwealth;

(ii) the Minister, or a delegate of the Minister;

(iii) an officer of the Department.

(4) The following are taken for all purposes to be valid and to have always been valid:

(a) the thing done, or purportedly done;

(b) anything done, or purportedly done, under or in connection with the relevant migration law, whether before, on or after commencement, that relates to the thing mentioned in paragraph (a).

(5) To avoid doubt, the validation in subitem (4):

(a) applies despite any effect it may have on the accrued rights of any person; and

(b) may result in a person being convicted of an offence constituted by conduct that would, apart from this item, not have constituted an offence at the time the person engaged in the conduct.

(6) For the purpose of applying this item in relation to civil or criminal proceedings, this item applies in relation to:

(a) civil or criminal proceedings instituted on or after commencement; and

(b) civil or criminal proceedings instituted before commencement, being proceedings that are concluded on or after commencement.

(7) To avoid doubt, a reference in subitem (6) to instituting proceedings includes bringing an appeal (within the meaning of the Judiciary Act 1903).

Note: An example of an appeal mentioned in subitem (7) is an appeal to the High Court under section 73 of the Constitution.

1. In the written submissions to the High Court of the appellant TCXM, the following arguments are advanced in relation to the application and validation provisions in Schedule 1 of the Amending Act -

(1) Paragraph 198AHAA(1)(a) provides that the rules of natural justice do not apply to an exercise of the executive power of the Commonwealth. TCXM has submitted that if the entry into the interim arrangements was ultra vires, then there was no "exercise of the executive power" to which s 198AHAA(1)(a) could attach.

(2) TCXM has further submitted that because the decision to enter into the interim arrangements was the exercise of statutory and not executive power, s 198AHAA(1)(a) does not attach for this reason also.

(3) In relation to the validation provision in clause 10 of Schedule 1 of the Amending Act, TCXM has submitted that there is a distinction between "valid" and "lawful" and that the validation provision is ineffective to make the impugned decisions lawful.

1. The power that the applicant seeks to have the Court exercise is its power to make orders to preserve the subject matter of a proceeding where the existence of a statutory obligation or the legality of an administrative process is the matter that is in issue, as with Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620. Orders of this type which interfere with the operation of a statute are exceptional and are usually made only where there is a strong case for the making of the order: see the discussion in BHP Coal Pty Ltd v Mining and Energy Union [2025] FCA 1116 at [24]-[47]. In the migration context, the power was explained in Minister for Immigration v MZAPC [2025] HCA 5; 99 ALJR 486 at [25]-[32] (Gageler CJ, Gordon, Gleeson and Jagot JJ). Orders may be made to prevent the removal of a person in compliance with s 198(6) of the Migration Act to prevent the frustration of the Court's process, to protect the Court's processes once set in motion, and to ensure that the Court can grant final relief of utility. This is so even if there is no direct challenge to the operation of s 198(6). As with all applications for an injunction, an applicant for an order of this type must be able to show "sufficient colour of right to the final relief, in aid of which interlocutory relief is sought", being the establishment of a serious question to be tried or a prima facie case: MZAPC at [23], citing Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [11], [13] (Gleeson CJ). An applicant for such an order must also demonstrate that the balance of convenience favours making the order. The strength of the prima facie case for final relief informs the balance of convenience.
2. In these proceedings, the applicant's claims for final relief are made on two distinct bases. The first basis seeks to challenge the Tribunal's decision of 10 October 2023 that it lacked jurisdiction to review the delegate's decision under s 501CA(4) not to revoke the cancellation of the applicant's protection visa. That claim faces two hurdles. The first is that the proposed application is well out of time. The second is the question whether there is any merit in the underlying claim that the Tribunal had jurisdiction because of the claimed defect in the notification letter. The question of merit would also inform whether the Court would extend time for making the application challenging the Tribunal's decision.
3. The second basis is the applicant's claim that the Minister's decision in relation to the final arrangements entered between the Commonwealth and the Republic of Nauru was ineffective because the applicant was not afforded procedural fairness. It was not submitted that the bringing of that claim requires an extension of time, and the Minister accepted that this Court would have jurisdiction over the claim on the ground that it involved the exercise, or purported exercise, of prerogative power. That claim also faces hurdles. The first is that the underlying elements of the claim are relevantly indistinguishable from those considered and rejected by Moshinsky J at first instance in TCXM. The second is the Amending Act, and the operation of the application and validation provisions in clauses 9 and 10 of Schedule 1 of the Amending Act.
4. The applicant submitted that the balance of convenience favoured making the interlocutory orders. The applicant relied on his personal circumstances and medical conditions referred to in the affidavits filed on his behalf. They include a mental health condition for which he is undergoing face-to-face treatment with a counsellor, and connections with the Afghan Hazara community that the applicant feared could not be continued if he were removed to Nauru. The applicant's submissions also relied on difficulties with the use of the English language and technology. I note that the reasons of the Tribunal stated that the applicant is illiterate. The applicant submitted that if he is removed from Australia to Nauru, his ability to seek to invoke this Court's jurisdiction would be limited and there would be a real risk he would not be able to have a fair trial.
5. The Minister submitted that even if the Court were to conclude that the applicant has a prima facie case for final relief, the balance of convenience strongly favours the refusal of the application for an interlocutory injunction, as each part of the applicant's substantive case is weak and has been brought at the eleventh hour.
6. The Minister relied on a passage in the reasons of Mortimer J in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [15] (CPK20). At [14], Mortimer J extracted a passage from the judgment of Hoffmann J in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 780-781 -

I think it is important in this area to distinguish between fundamental principles and what are sometimes described as 'guidelines', ie useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the 'wrong' decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong' in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.

(Emphasis added.)

In public law, evaluating the "risk of injustice" to the repository of a public power may involve a different kind of evaluation. The risk of injustice may, in such circumstances, relate to the frustration of legislative intention within a legislative scheme, or the interruption of the course otherwise contemplated by law. Nevertheless, consideration of which course has the lower risk of injustice may still provide useful guidance to the Court in assessing whether it is appropriate to grant interlocutory relief.

1. The Minister submitted that where, as here, the grant of an interlocutory injunction would restrain the performance by officers of the Commonwealth of the duty to remove the applicant from Australia as soon as reasonably practicable pursuant to s 198(2B) of the Act, this was itself important in assessing the balance of convenience.
2. The Minister relied on the fact that the applicant was legally represented in the Tribunal proceeding and that he did not seek to challenge the decision in any judicial review proceedings brought within the prescribed 35 day period. The Minister pointed to the fact that the applicant has sought to bring an application to the Court only upon being informed that he will be removed to Nauru. The Minister submitted that the applicant now sought to add the TCXM grounds to bolster his case for interlocutory relief.
3. The Minister submitted that the applicant's application is of a type which "frustrat[es] the legislative intention", which is manifest in the command in s 198(2B) of the Act, that unlawful non-citizens to whom it applies must be removed from Australia. The words in quotations are an allusion to CPK20 at [15]. The Minister submitted that the frustration of the legislative intention should weigh heavily in this Court's assessment of the balance of convenience.
4. The Minister submitted that in the circumstances of this case, declining to grant the interlocutory injunction sought by the applicant would not destroy the subject matter of the proceeding insofar as it concerns the substantive matter of the challenge to the Tribunal's decision. The Minister submitted that if the applicant is successful both in obtaining an extension of time, and then in quashing the decision of the Tribunal and having mandamus issue, he could still pursue a review before the Administrative Review Tribunal in relation to the delegate's decision under s 501CA(4) of the Act to decline to revoke the cancellation of his protection visa despite being located offshore. The Minister submitted that the applicant could pursue a review application even on the assumption that the notification of the delegate's decision was not effective, citing SZOFE at [35]-[36] (Emmett J) and [70] (Buchanan and Nicholas JJ).
5. However, in a perspicuously fair submission the Minister accepted that if the applicant is removed to Nauru and is then able to conduct this proceeding and a subsequent review by the Tribunal to a successful conclusion, with the result that the delegate's decision is set aside by the Tribunal, the applicant's protection visa, if reinstated, would not be effective to allow the applicant to return to Australia. In order to return to Australia, the applicant would have to apply for another visa, and the Minister accepted that the applicant's character considerations would be relevant to the Minister's decision on any such application. Correspondingly, the Minister accepted that if the applicant remains in Australia, is successful in these proceedings, and the Tribunal subsequently revokes the cancellation decision, the applicant would be the holder of a protection visa and could remain in Australia. The Minister accepted that, from a practical perspective, remaining in Australia is more beneficial to the applicant and should be weighed in the balance accordingly. However, the Minister submitted it is not the case that the subject matter of the proceeding would be destroyed or rendered futile if the applicant is removed from Australia.
6. The Minister submitted that other matters that are raised by the applicant and going to the balance of convenience should be given little weight. The Minister submitted that the applicant will have access to health services, including telehealth and is also entitled to the same freedoms as a Nauruan citizen which includes the right to life and freedom of religion. In relation to the applicant's back and neck injuries, the Minister referred to the applicant's health discharge summary which identified that the applicant takes Celebrex and paracetamol, both of which are available in Nauru. The Minister also relied on evidence of internet connectivity and telecommunications in Nauru, including a Starlink community gateway which a Nauruan government media release dated 17 December 2024 reported as being operational. The Minister also relied on the contents of a webpage of the Australian Infrastructure Financing Facility for the Pacific dated 28 August 2025 which reported that the East Micronesian Cable, which is an international undersea telecommunications cable, was months away from being ready for service which was expected in November 2025.

1. I am persuaded that the applicant has a prima facie case in relation to his challenge to the Tribunal's denial of jurisdiction and the associated application for an extension of time within which to bring an application in relation to that decision. While the Minister has advanced cogent arguments against both the application for an extension of time and the underlying claim that the Tribunal was wrong to decline jurisdiction, the arguments do not rise to the level of defeating the applicant's claim to a prima facie case. The application for an extension of time will be determined after a full consideration of all the relevant circumstances in accordance with the principles essayed in Tu'uta Katoa. The applicant's delay, and the reasons for it, will fall to be determined with other considerations. Those other considerations may include the fact that the applicant has not had the benefit of any Tribunal review of the delegate's decision not to revoke the cancellation of his visa. All these matters can be the subject of full argument on the hearing of the application to enlarge time. As to the underlying claim that the delegate's letter of notification did not comply with the requirement in s 501G(1)(f) to state the time in which the application for review may be made, the applicant's claim is worthy of argument, and I consider that the applicant has therefore made out a prima facie case in relation to it.
2. As to the claim based on the arguments advance in TCXM, were it not for the fact that there is an appeal from the decision of Moshinsky J and that it has been removed to the High Court, I would have concluded that there was no prima facie case disclosed in relation to that claim. Indeed, the Minister submitted that I had to be satisfied that the decision of Moshinsky J in TCXM was plainly wrong in order to be satisfied that the applicant has a prima facie case. I do not accept that to be the correct position in this application. The existence of the appeal from the orders in TCXM, and the fact that the High Court ordered its removal, give reason to think that there may be an arguable controversy about the correctness of TCXM. The combination of the removal of the cause by the High Court, and the submissions advanced by TCXM in the appeal persuade me, on the grounds set out in those submissions, that the matter is worthy of argument and that on those grounds the applicant has a prima facie case for final relief in these proceedings.
3. In relation to the balance of convenience examined through the lens of the protection of the Court's processes, I am satisfied that removal of the applicant to Nauru will likely jeopardise the utility of the relief that he seeks. The practical utility of the relief that the applicant seeks is that he be able lawfully to remain in Australia, including on a BVR. This is a case where the Court's power to preserve the utility of final relief essayed by Gageler CJ, Gordon, Gleeson and Jagot JJ in MZAPC is engaged, and the balance of convenience favours the making of an interlocutory order to preserve the status quo pending a final hearing or further order.
4. In relation to the applicant's claim that the Tribunal erred in declining jurisdiction, if the applicant is removed from Australia, he will lose the opportunity to have the cancellation of his protection visa revoked while he remains in Australia. This is significant because any restoration by the Tribunal of the applicant's protection visa would not enable the applicant to return to Australia from Nauru under that visa, and he would have to apply for another visa which would face obstacles.
5. In relation to the TCXM ground, if successful on this ground, the final relief sought by the applicant in the proposed application would preclude his removal to Nauru. Because that is the subject matter of the proceeding, the balance of convenience favours making the order because of the combination of the existence of a prima facie case, the dissolution of the subject matter of the proceeding if an interlocutory order is not made, and the significant inconvenience to the applicant if he is removed to Nauru on the supposition that the decision to enter into the final arrangements with the Republic of Nauru is attended with error as the applicant claims.

1. The applicant by his counsel has offered the usual undertaking as to damages. Upon that undertaking I will make the injunctive orders sought by the applicant and hear the parties on further procedural orders.

I certify that the preceding 61 (sixty-one) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.