BMW23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1679

1. The application before the Court is for an interlocutory injunction to restrain the first respondent (the Minister) from removing the applicant from Australia at 9.20am (AWST) tomorrow, 14 October 2025.
2. The Court is not satisfied that an interlocutory injunction should be granted. The following are the Court's ex tempore reasons for judgment which the Court reserves the right to edit or amend prior to any necessary written publication.

1. It is not necessary for the purposes of these reasons to set out in detail the background of the application, but some matters should be noted. Much of the background is set out in the previous decision of Judge Humphreys in respect of the applicant's earlier proceedings in BMW23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 597 (BMW23) at [1]-[6]:
   1. The applicant is a citizen of the Islamic Republic of Pakistan and arrived in Australia on 10 July 2017 on a Student Visa (Subclass 500). The Student Visa was cancelled on 19 December 2019.
   2. On 9 December 2021, the applicant applied for a Protection Visa (Subclass 866) ("the visa)". The applicant claimed that he would be subject to honour killings due to his criminal charges for "rape" in Australia, for which he was awaiting trial at the time.
   3. On 10 December 2021, the applicant submitted a change of circumstances document stating that since being incarcerated in Australia, five members of his family were murdered in or around March 2020. The murders allegedly occurred due to one of his cousins being in a relationship with a woman while they were not married. The applicant provided copies of a First Information Report ("FIR") pertaining to this alleged incident.
   4. On 21 February 2022, the delegate refused to grant the applicant the visa as he did not meet s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act").
   5. On 23 February 2022, the applicant sought a review of the decision made by the delegate to refuse to grant the visa to the Administrative Appeal Tribunal ("the Tribunal").
   6. On 19 April 2022, the Tribunal affirmed the decision of the delegate to refuse the grant of a Protection Visa.
2. The Court has reviewed the decision of the Tribunal and also adopts as accurate the helpful summary of that decision by Judge Humphreys in BMW23 at [12]-[21]:

1. The applicant's claims for protection are summarised at [17] - [44]. They are as follows:

• He will face an honour killing if he returns to Pakistan due to the criminal charges of sexual assault he faced in Australia;
  • He is from a very strong religious and political family in Pakistan who will kill him to restore their honour;
  • Members of his family have been murdered including a cousin in 2013 and an aunt in 2013;
  • His father was killed in an act of revenge in 2001;
  • While honour killings are illegal under Pakistani law, there is little to no enforcement and are not reported to the police;
  • His family members are in senior positions in the army, police, administrative politics, counterterrorism and federal airport police and will influence people to turn a blind eye to the applicant's death;
  • If he is killed, it will be made to look like an accident; and
  • He is unable to move to another part of Pakistan or another country like the United Arab Emirates or Afghanistan.

1. The applicant provided further evidence at his Protection Visa interview on 23 December 2021 and made the following claims:

• He was charged with sexual assault in Australia and released from prison on 24 November 2021. The trial was scheduled for August 2022;
  • News articles relating to the applicant's offences were posted on Facebook and the applicant believes that members of his family found out about the criminal charges;
  • The applicant was unable to provide evidence relating to the news articles posted to Facebook due to not having access to his email account or Facebook account;
  • He had contacted his uncle in Pakistan seeking financial assistance between $40,000 and $50,000 to pay for a lawyer in Australia. He told his uncle at the time that he needed this money for a lawyer because he was charged for being in a fight;
  • After the articles were published on Facebook, the applicant only had contact with his mother in Pakistan and claims that no one else in his family would speak to him;
  • The applicant's cousin was killed in or around 2010 or 2011 in the United Arab Emirates, because of his marriage to a girl of the Christian faith and stated that under Sharia Islamic Law the penalty was death;
  • His uncle and family are politically connected, and the applicant's charges would bring shame to the family, and he feared his uncle would kill him.

1. During the Protection Visa interview, it was put to the applicant that the independent country information states that, within Pakistan, charges of rape are rarely prosecuted, and marital rape is not a criminal offence. In response the applicant says it is because people take things into their own hands and no one goes to the police and if they do, they are considered "weak". 2. On 3 January 2022, the applicant provided documents relating to his uncle's acquittal of murder charges, photographs of various men at a gathering, Australian news articles relating to his arrest and a screenshot stating he could no longer access his Facebook account without further identification. 3. On 6 January 2022, the applicant provided further photographs of injuries sustained by persons he claimed were members of his family during a fight. 4. At a further hearing on 13 April 2022, the applicant gave evidence, with the assistance of an Urdu interpreter. His evidence was that:

• His first cousin was killed on the orders of his father between 2010 and 2012 for leaving his wife, and not divorcing her before marrying another woman (CB 185);
  • Another cousin had been involved in "gang like coercion" against local members of political parties to which he was opposed, and was subsequently killed at the command of his father (CB 186); and
  • His cousin was killed for "association with a female student" at his school, the applicant provided a photocopy of the original FIR in Urdu and the incident had occurred in March 2020 (CB 187).

1. The Tribunal did not accept that the news stories of the applicant's charges were posted on Facebook and rejected the factual basis of these claims. The Tribunal found the applicant's relatives had not learned of the true nature and content of the charges against the applicant (CB 190, [53]). Further, the Tribunal found it could not "rely" on the applicant's claims because the applicant had given inconsistent evidence about why he had not been able to produce evidence of the Facebook post (CB 190, [48]). The Tribunal expressed concern that with the knowledge that the post in question had been deleted two years earlier, the exercise of asking a friend to access the post was "entirely disingenuous" as well as "wholly incongruous" (CB 188, [41]). 2. The Tribunal found that the first FIR provided did not support his claim of his cousin being killed in an honour killing (CB 190, [50]). The Tribunal also did not accept that the other cousin was killed for talking to a woman of the Christian faith (CB 190, [52]). The Tribunal found the applicant was not a reliable witness and gave no weight to the statement made by his sister (CB 190, [53]). 3. The Tribunal found the applicant's claims related to an "individual local criminal act of violence" did not have a nexus with s 5J(1)(a) of the Act (CB 189, [47]). The Tribunal found that the applicant did not face any real chance of persecution for any reason cited in s 5J(1)(a) of the Act. The Tribunal concluded the applicant was not a person in respect of whom Australia owed protection obligations under s 36(2)(a) of the Act (CB 190, [56]). 4. The Tribunal found the applicant's claims for complementary protection were "essentially" the same as his refugee claims which were "tainted" by a lack of credibility. The Tribunal found the "real risk" test imposed the same standard as the "real chance" test and his refugee claims could "no more succeed" here as complementary protection claims (CB 191, [64]). The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there was a real risk the applicant would suffer significant harm (CB 191, [65]). The Tribunal concluded that the applicant did not satisfy s 36(2)(aa) of the Act.
2. On 28 March 2022, the applicant lodged an application seeking review of the decision to cancel his student visa. On 16 May 2022, the Tribunal found that it did not have jurisdiction to review that decision. The Tribunal found that the application was not a valid application as it was not accompanied by the prescribed fee and no determination had been made (or requested) that the fee should be reduced.
3. On 8 June 2023, the applicant brought proceedings in this Court seeking an extension of time under s 477(1) of the Migration Act 1958 (Cth) (the Act) to seek judicial review of the Tribunal's decision dated 19 April 2022 in respect of his protection visa application. The applicant required an extension of time because he had brought proceedings over a year outside of the prescribed period for making such an application.
4. On 9 July 2024, the applicant's application for an extension of time was refused (see BMW23). In refusing the application, the Court found that the delay in lodging the application was excessive and that the applicant's explanation did not completely explain such a lengthy delay (BMW23 at [39]). The Court also found that, even at an impressionistic level, there was insufficient merit to the applicant's grounds and a perusal of the Tribunal decision did not reveal any unarticulated jurisdictional error (BMW23 at [55]-[56]).
5. At the hearing of the proceedings today, the applicant advised the Court that he had sought leave to appeal against Judge Humphreys' decision, but the Federal Court of Australia had dismissed his application as an abuse of process. The Court accepts that to be the case even though there is no evidence before it in that respect.
6. On 27 July 2025, the applicant made a request for Ministerial intervention under s 48B of the Act to permit him to make a second protection visa application.
7. On 28 August 2025, the applicant lodged an application for a Bridging E (General) (Subclass 050) visa (Bridging Visa). That application was refused by a delegate of the Minister on 4 September 2025. However, on 25 September 2025, the Administrative Review Tribunal set aside the delegate's decision and remitted the matter for reconsideration in accordance with the order that the applicant met the criteria on cl 050.223 of Schedule 2 to the Migration Regulations 1994 (Cth). That criteria required satisfaction that the applicant would abide by conditions imposed on the visa if granted. It is common ground that the remitted application for the Bridging Visa is yet to be further considered by the Minister.
8. On 8 October 2025, the applicant was advised that his request for Ministerial intervention had been finalised as it was affected by a negative personal procedural decision (PPD) made by the Minister for Home Affairs on 4 September 2025.
9. The PPD set out that the Minister for Home Affairs, exercising his power under subsection 48B(1) of the Act and acting in the public interest, decided not to consider making a substantive public interest decision under that subsection in relation to any request which:

(a) Was made before the date of the PPD;

(b) Has not, at the date of the PPD, been the subject of a decision by a Minister under subsection 48B(1) of the Act; and

(c) Was not made by or on behalf of a person identified in the annexure to the PPD.

1. The annexure to the PPD referred to an applicant's Permission Request ID (PRID) related to their Ministerial intervention request. The Minister advised the Court that a PRID is the unique number generated for each visa application, request or other event recorded in relation to the applicant's Integrated Client Service Environment (ICSE) profile. The Minister drew the Court's attention to the applicant's PRID which was not contained in the annexure to the PPD.
2. The Court is satisfied that the PPD had the effect of finalising the applicant's Ministerial intervention request.
3. Nevertheless, the PPD also stated that "a person who is adversely affected by this decision, and wishes again to have a Minister make a decision under section 48B, could make a new request for such a decision subject to those instructions as in force from time to time". The applicant advised the Court that he had made such an application. Counsel for the Minister sought instructions and confirmed that the Minister had received a further request for Ministerial intervention which remained outstanding.
4. On 23 September 2025, the applicant was notified of the intention to remove him from Australia on 14 October 2025.
5. On 8 October 2025, the applicant filed the application which is the subject of these proceedings.
6. On 10 October 2025, the Court convened a directions hearing at which time orders were made for the parties to file any submissions or evidence by 12 October 2025, and listed the matter for an interlocutory hearing on 14 October 2025.
7. The parties filed submissions and the Minister filed an affidavit in compliance with these orders on 12 October 2025.

1. Section 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) empowers this Court, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court considers appropriate.
2. The Minister, correctly, draws attention to the fact that the applicant has only sought interlocutory orders in his application. Consequently, there is no underlying substantive application upon which an interlocutory injunction could be made. That is perhaps understandable given the applicant is unrepresented and subject to the practical constraints of immigration detention and a curtailed timeframe. Nevertheless, the applicant has not sought final orders seeking a writ of mandamus or prohibition. On that basis the Minister argues that s 140 is not engaged (citing ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) (2024) 387 FLR 369).
3. However, the Minister acknowledges that a "constitutional injunction" could be sought, that is, an injunction pursuant to s 75(v) of the Constitution. In Telefoni v Minister for Immigration and Citizenship [2025] FedCFamC2G 1474 (Telefoni), this Court said that, where the only relief sought by an applicant is an injunction, it must be taken that the applicant seeks a constitutional injunction. In this respect, the Minister argues that a condition for the grant of a constitutional injunction requires an apprehension of conduct by an officer of the Commonwealth that will exceed the power by which the officer seeks to engage in the conduct (again relying upon ZRTY at [59]). In Telefoni, Judge Manousaridis said at [39]:

[T]he 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.

1. There is considerable force to the Minister's submissions in this respect. Nevertheless, having regard to the constraints upon the applicant already referred to and the particular exigencies of applications involving the removal of a person from Australia, the Court will consider whether there is a basis by which the applicant could establish that an interlocutory injunction should issue if he amended his application to seek final orders. That is, the Court will consider the applicant's application according to the principles governing the grant of an interlocutory injunction.
2. The organising principles relevant to the consideration of such an application are well established. They are, first, the Court must be satisfied that there is a serious issue to be tried; second, whether damages are an adequate remedy for any injury suffered by a party; and third, whether the balance of convenience lies with granting the injunction.
3. Through his application, and in submissions before the Court today, the applicant advanced the argument that an injunction was warranted because:

(a) If granted, he would potentially pursue an application for special leave in respect of his unsuccessful judicial review proceedings against his unsuccessful application for a protection visa.

(b) His outstanding Ministerial intervention request; and

(c) His outstanding application for a bridging visa.

Is there a serious error to be tried in respect of the unsuccessful protection visa?

1. The grounds of the application for the interlocutory injunction appear, on their face, to challenge only the Tribunal's decision in respect of the applicant's protection visa application. Those grounds are set out below:
   1. Legal Error: The decision-maker misapplied Appellant S395/2002 v MIMA (HCA) by effectively requiring or assuming "discretion" or concealment to avoid harm, and assessed the applicant's gay identity through stereotypes rather than inquiring whether, living openly, he faces a real chance of persecution; this contravenes binding authority that applicants cannot be expected to hide their identity.
   2. Failure to consider relevant considerations: The decision failed to engage with probative country information showing criminalisation of same-sex conduct under s 377 Pakistan Penal Code, police misuse for extortion/abuse, and societal violence against LGBT persons (e.g., HRW 2024/2025 reports killings and Shariat Court (rollbacks on trans rights; OHCR 2024 notes arbitrary arrests and lack of protection).
   3. Illogicality/irrationality: Adverse credibility findings relied on implausibility inferences not supported by evidence (e.g., relationship timelines or disclosure patterns), meeting the SZMDS (HCA) threshold for jurisdictional error in protection claims.
   4. Risk of persecution: As a gay man, I face severe discrimination and persecution if returned to Pakistan.
   5. Procedural unfairness: Adverse matters were not put to the Applicant.
2. What is apparent from the grounds of the application is that they are all underpinned by the Tribunal's purported failure to properly engage with a claim that the applicant would be at risk of persecution on the basis of his sexuality. As can be seen from the above summary of the Tribunal's decision, no such claim was before the Tribunal.
3. The Minister contended that it is an abuse of process for the applicant to again seek to have this Court extend time and engage in any form of judicial review of the Tribunal decision which is the subject of Judge Humphreys' judgment in BMW23. In this respect, the Minister submitted that there is no substantively different and meritorious basis for identifying any jurisdictional error in the Tribunal's decision (relying on CTF21 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 376 FLR 336 at [91]). The Court accepts the Minister's submission in this respect.
4. The Court also observes that the applicant advised the Court at the hearing today that he had sought leave to appeal Judge Humphreys' decision but that the Federal Court had dismissed that application as an abuse of process. Whilst it is possible that the applicant might seek to advance his case to the High Court, the existence of such a speculative application, considerably out of time, is not a barrier to compliance with the statutory obligation to remove the applicant.
5. There is an equally fundamental difficulty in that the applicant does not press any error in the decision in BMW23 that can be made out. Indeed, the applicant indicated at the hearing that the basis for any continued challenge would lie in additional claims and evidence he says were not before the Tribunal. Clearly, that could not ground jurisdictional error in the Tribunal's decision.
6. For these reasons, even if the applicant were to amend his application to seek final orders in respect of either his finalised judicial review proceedings or the underlying Tribunal decision, there is no serious issue to be tried.

1. The Minister submitted that the applicant's extant bridging visa application is irrelevant to his removal and cannot be the basis for any injunctive relief. In this respect, the Minister relied upon the terms of s 198(5) of the Act which provides:

(5) 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.

1. The application of s 198(5) was recently considered by Judge Manousaridis in Telefoni at [41]-[43] where Judge Manousaridis found:
   1. 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.
   2. 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.
   3. 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.
2. Respectfully, the Court agrees with the conclusions reached by Judge Manousaridis. Subsection 198(5) applies, and the existence of the bridging visa application by itself, noting that the applicant is presently not permitted to make a further application for a substantive visa, does not impede the statutory requirement for the applicant's removal

1. As observed above, the applicant's first request for Ministerial intervention was finalised as a consequence of the Minister's PPD on 4 September 2025. It is accepted that the applicant has made a subsequent request for Ministerial intervention.
2. At the hearing, the applicant appeared to rely on the decision of the High Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; (2023) 279 CLR 1 (Davis). The ambit of that decision was helpfully explained by the subsequent decision in Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; (2025) 99 ALJR 486 (MZAPC) at [2] as follows:

Section 195A of the Migration Act confers a personal and non-compellable power on the Minister to grant a person who is in immigration detention a visa of a particular class if the Minister thinks that it is in the public interest to do so. The requirement of s 195A that "[t]he power ... may only be exercised by the Minister personally" was held in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to create a "zone of exclusive Ministerial personal decision making power" into which no other executive officer of the Commonwealth may transgress. The effect of the statutory zone of exclusion is that the executive power of the Commonwealth does not extend to permit the Minister to authorise a departmental officer to decide that it is not in the public interest to grant a visa as a basis for declining to refer to the Minister a request for an exercise of power under that section.

1. In this matter, there is no suggestion that a departmental officer will seek to unlawfully transgress on the Minister's personal non-compellable power.
2. The Minister accepted that there was an undecided request for the Minister to exercise his non-compellable power notwithstanding the fact that the applicant's earlier request had been finalised as a consequence of the PPD.
3. However, the Minister relied upon s 197E of the Act which provides that it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the statutory duty to remove an unlawful non-citizen in s 198. Subsection 197E(2) provides:

(2) To avoid doubt:

(a) an officer's duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the unlawful non‑citizen; and

(b) the fact that the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unlawful non‑citizen is irrelevant to whether or not the removal of the unlawful non‑citizen is reasonably practicable for the purposes of section 198.

1. Section 197E was inserted into the Migration Act after the decision in Davis, on 5 December 2024 by virtue of the Migration Amendment (Removal and Other Measures) Act 2024 (Cth).
2. On its face, s 197E makes it clear that the existence of an extant request for Ministerial intervention has no bearing by itself on compliance with the requirement in s 198 to remove an unlawful non-citizen from Australia. The Court has not been drawn to, and cannot independently ascertain in the limited time, any obvious or apparent inconsistency with High Court authorities such as Davis or MZAPC.
3. Consequently, the Court finds that the existence of the request for Ministerial intervention is irrelevant to whether the applicant can be removed in accordance with s 198.

1. The Court observes that if the applicant had satisfied the Court that there was a serious issue to be tried, the Court would have found that the balance of convenience favoured granting an interlocutory injunction in light of the applicant's claim, albeit untested, that he would suffer irreparable harm.
2. However, as the Court has found that there is no serious issue to be tried, it is unnecessary to consider this further.

No suggestion that an officer has acted, or will act, unlawfully

1. As observed earlier, the Minister's primary position is that the applicant could only seek a constitutional injunction which could only be granted if the applicant could demonstrate that the Minister's officers were exercising their obligations under s 198 unlawfully.
2. In this respect, the Court accepts that:

(a) The applicant's removal from Australia is required by s 198 and is required to occur as soon as reasonably practicable;

(b) For the reasons set out above, the fact that the applicant has an undetermined application for a bridging visa and an as yet unresolved request for Ministerial intervention is irrelevant to compliance with the duty to remove;

(c) There is no evidence or suggestion that officers of the Minister's department will unlawfully consider the applicant's request for ministerial intervention in a manner inconsistent with Davis.

1. Accordingly, the Court accepts that there is no basis for the grant of any form of injunction.

1. The Court therefore makes an order that the application filed on 8 October 2025 is dismissed.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.