Chukwuma v Minister for Immigration and Multicultural Affairs [2025] FCA 1579

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

Order amended on 12 December 2025 pursuant to Rules 39.05(g) and (h) of the Federal Court Rules 2011.

(Delivered ex tempore, revised from transcript)

1. By an interlocutory application filed on 4 December 2025, the appellant sought an urgent interlocutory injunction to restrain his removal from Australia until the hearing and determination of his appeal from a decision of Charlesworth J, dismissing his application for judicial review of the Minister's decision to set aside a decision made by the Administrative Appeals Tribunal to revoke the cancellation of his protection visa: Chukwuma v Minister for Immigration and Multicultural Affairs [2025] FCA 1302.
2. When the matter was called on for hearing, the parties indicated that they may be able to reach an agreement in relation to the disposition of the interlocutory application. The matter was briefly stood down. When the hearing resumed, the parties provided minutes of consent orders by which the interlocutory application would be dismissed, on the Minister giving an "assurance" to the Court not to remove the appellant from Australia until the appeal is determined.
3. The parties initially proposed that an order be made to reserve the costs of the interlocutory application. However, I was not minded to make such an order. It is appropriate that any issue concerning the costs of the application should be resolved now, rather than being reserved to be dealt with at a future date when the circumstances in which the application was brought might be a distant memory.
4. The appellant sought an order for the Minister to pay his costs of the interlocutory application. This was opposed by the Minister, who instead sought a costs order against the appellant. It is apparent that the parties' respective positions are informed by differing views as to the reasonableness of bringing the application for an interlocutory injunction on an urgent basis. It is therefore necessary to recount the history of events leading up to the application made by the appellant.

1. In support of the interlocutory application, the appellant relied on an affidavit of his solicitor, Bethany Lillian Rose, affirmed on 4 December 2025. Further affidavits were filed by each of the parties on the question of costs: the appellant relied on an affidavit of Isabel Frances Owen affirmed on 5 December 2025, and the respondent relied on an affidavit of Maximilian Plitsch affirmed on 5 December 2025.
2. Among other things, Ms Rose deposes that, on or about 2 December 2025, the appellant was given notice that his Bridging (Removal Pending) visa (BVR) had ceased to be in effect, presumably pursuant to s 76AAA of the Migration Act 1958 (Cth), following which the appellant was taken into immigration detention. The appellant was given a document that purports to be a "Long Term Stay" visa issued by the Republic of Nauru on 20 November 2025.
3. The appellant's lawyer emailed the Australian Government Solicitor, who were the solicitors on the record in his pending appeal, and requested confirmation that the appellant would not be removed from Australia while his appeal was ongoing. The Minister's solicitors responded that they were urgently seeking instructions and would "revert" to the appellant's lawyer as soon as they were able to do so.
4. At around 11.45 am on 2 December 2025, the appellant was issued with a "Notice of Intention to Remove from Australia", and was required to participate in a telephone interview during which he was asked about being removed to Nauru. The Notice stated that arrangements had been made for the appellant's removal and that it was anticipated that he would be removed from Australia on or after 9 December 2025. The Notice indicated that the Department of Home Affairs would "monitor" the arrangements for his removal until the appellant's departure to ensure that his removal could "be effected as intended", which would include confirming various matters such as "that you do not have any outstanding legal matters impacting on your removal". The Notice also advised the appellant that, if he wished to take any legal action related to his "scheduled removal", he should act promptly. The Notice attached a "Request for Removal from Australia", which the appellant refused to sign. The appellant raised concerns about the impact of his removal on his partner and two children, each of whom are Australian citizens, and requested an opportunity to seek advice from his legal representative.
5. The appellant's lawyer replied to the Minister's solicitors on 2 December 2025, drawing their attention to statements that had been made by the Minister in his Second Reading Speech to the Home Affairs Legislation Amendment (2025 Measures No 1) Bill 2025 (Cth), and to passages in the Explanatory Memorandum to that Bill: Commonwealth, Parliamentary Debates, House of Representatives, 26 August 2025, 505 (Tony Burke, Minister for Home Affairs); Explanatory Memorandum, Home Affairs Legislation Amendment (2025 Measures No 1) Bill 2025 (Cth). The tenor of those statements and passages was to the effect that the removal powers would only be used where non-citizens had exhausted all avenues to remain in Australia, including merits review or judicial review processes. Referring to the Notice that had been given to the appellant, his lawyer sought an urgent written undertaking that the appellant would not be removed from Australia while his appeal is ongoing, noting that they were preparing to file an urgent interlocutory application for injunctive relief to that effect.
6. Later on 2 December 2025, the Minister's solicitor responded to the appellant's lawyer. The Minister did not agree to give a written undertaking that the appellant would not be removed from Australia pending the determination of his appeal. The Minister's solicitor conveyed his instructions that there were "presently no plans in place to remove the [appellant] from Australia". The letter from the Minister's solicitor stated:

We confirm that, if any arrangements for the [appellant's] removal are made while this proceeding is on foot, then, consistently with the Migration Practice Note - Removal from Australia of Immigration Detainees who have Proceedings before the Court (MIG-2), reasonable notice of any scheduled removal will be given. Such notice would enable any application to be made to the Court, should the [appellant] wish to make one.

1. However, the letter stated that, if the appellant were to file an application for urgent injunctive relief despite the confirmation set out above, the Minister would oppose any such application. The Minister's solicitor also invited the appellant and his lawyer to give careful consideration to the confirmation provided in the letter when providing any Certificate of Urgency under the Duty (Urgent) Applications Interim Practice Note during 3 Region Trial (GPN-DUTY). The Minister pointed out that the Certificate of Urgency that was subsequently filed by the appellant on 4 December 2025 made reference to the appellant's receipt of the Notice, but did not itself mention the correspondence from the Minister's solicitors nor the confirmation that the Minister would act in accordance with the Migration Practice Note - Removal from Australia of Immigration Detainees who have Proceedings before the Court (MIG-2) (Removal Practice Note).
2. On the following day, 3 December 2025, the appellant was handed a letter from an unnamed officer in the Department, which asked him to provide reasons why he should not be removed to Nauru. The letter relevantly stated:

We spoke to you on 2 December 2025, however you stated that you could not go into detail in response to the question and you requested the questions be sent to you in writing.

The Australian Government is required to remove you as soon as reasonably practicable under section 198 of the Migration Act 1958 (the Act). We are considering removing you to Nauru. Are there any reasons why you should not be taken to Nauru?

When do you need to give us the information

You have 2 days starting on the day after we handed to you this request to give us the information we have asked for.

How should you provide the information

Please provide any reasons why you should not be taken to Nauru in writing to your detention status resolution officer in detention.

Alternatively if you would like to provide your reasons orally please let your detention status resolution officer know before 5 December 2025[.]

1. On 4 December 2025, the appellant's lawyer provided to the Department a bundle of documents in response to the request for reasons why the appellant should not be taken to Nauru. The documents included a statement made by the appellant accompanied by a range of supporting materials.
2. The interlocutory application was filed by the appellant at 1.32 pm yesterday, 4 December 2025, and was served on the Minister's solicitors shortly afterwards.
3. At 5.51 pm, the Minister's solicitors wrote to the appellant's lawyer, asserting that they did not consider there was any need for the Court to hear substantive argument on the interlocutory application, in circumstances where the Minister had advised that there were no plans in place to remove the appellant from Australia and had confirmed that the appellant would be given "reasonable notice" of any arrangements for his removal that were made during the course of his appeal. The Minister proposed consent orders to put in place a timetable for the interlocutory application to be heard on a date not before 12 December 2025.
4. The appellant's lawyer responded at 9.14 pm, stating that the appellant did not agree to the consent orders in the light of the contradictory information that had been given to him by the Department. The appellant's lawyer stated that, in the light of the Minister's refusal to provide a written undertaking that the appellant would not be removed from Australia while his appeal remains pending, it remained necessary to press the interlocutory application.
5. By an email sent at 11.00 pm, the Minister's solicitors advised the appellant's lawyer that the Minister had given instructions "to provide an assurance that the Minister will not remove [the appellant] pending the determination of the appeal in proceeding SAD256/2025". The Minister's solicitors advised that, in the light of this assurance, the Minister "repeat[ed]" his position that there was no need for an application for interlocutory relief to be determined on an urgent basis, and sought the appellant's position on whether the interlocutory application was still pressed.
6. The appellant's lawyer replied to this email at 7.04 am this morning, attaching proposed minutes of consent orders that reflected the Minister's position. At 9.07 am, the Minister's solicitors confirmed that they had been instructed to agree to the proposed orders with a change in the language recorded in the notation so as to refer to an "assurance", instead of an "undertaking", being given by the Minister to the Court. In response to a query from the appellant's lawyer as to what the Minister's solicitors understood to be the difference between an undertaking and an assurance, the Minister's solicitors advised (by email sent at 9.28 am) that "[w]e do not see there being a practical difference between those terms for the purposes of this proceeding", stating that "[a]ssurance is the preferred language of our client and reflects the scope of what we are instructed to agree".
7. As mentioned above, shortly after the interlocutory application was mentioned this morning at 9.30 am, the Minister and the appellant reached agreement on consent orders to dismiss the interlocutory application, on the basis of the assurance in the terms set out above being given to the Court by the Minister.

1. The following matters emerge from the chronology of events set out above.
2. After being taken into detention following the cessation of his BVR, the appellant was informed by the Department that arrangements had been made for his removal from Australia on or after 9 December 2025. The clear implication from this Notice was that the appellant's removal was or would imminently be "scheduled". This communication took place after the appellant's lawyer had contacted the Minister's solicitors to draw attention to his pending appeal, and to seek confirmation that the appellant would not be removed from Australia until his appeal had been determined.
3. The Minister refused to give any undertaking not to remove the appellant from Australia while his appeal was on foot, and instead sought to reassure him that there were "presently" no plans in place for his removal, and that his position was adequately protected by the guidance contained in the Removal Practice Note.
4. The Removal Practice Note provides that detainees with proceedings currently before this Court should not be removed from Australia unless the Commonwealth can demonstrate that the detainee has been properly informed of the contents of the Removal Practice Note and given a reasonable and practicable opportunity to communicate with the Court about their proposed removal, and if so desired to move the Court to restrain their removal. Relevantly, paragraph 3.2 of the Removal Practice Note states:

In the case of involuntary removal, the Court expects that, before any removal occurs, a full, reasonable and practicable opportunity is given by the Minister to the person in detention for the making of an application to prevent their removal. What constitutes a reasonable and practicable opportunity depends on the particular case. Affording a reasonable and practicable opportunity would generally include informing a detainee who is not aware of the right to make an application to prevent their removal of that right. Affording a reasonable and practicable opportunity will always require giving the detainee a reasonable time and appropriate facilities to seek advice if the detainee wishes and to make any application for injunctive relief.

Paragraph 4.2 of the Removal Practice Note states:

Where a detainee has filed an application in relation to involuntary removal, this will be allocated to a Judge for determination in the ordinary course. Any urgent applications, that require the Court's consideration within a few days of filing, should be brought promptly to the attention of the Court in accordance with Duty (Urgent) Applications Interim Practice Note during 3 Region Trial (GPN-DUTY).

1. Accordingly, the position that was adopted by the Minister as at 2 December 2025, and maintained until late evening on 4 December 2025, was that an application for urgent interlocutory relief was unnecessary because the Minister had stated through his solicitors that there were no plans "in place" for the appellant's removal from Australia (notwithstanding the information that had been given by the Department directly to the appellant) and that he would be given reasonable notice and an opportunity to bring an application to prevent any such removal if and when it was scheduled to occur.
2. This assurance was not regarded as satisfactory by the appellant. The Minister had not given the requested undertaking not to remove him from Australia while his appeal is pending. Further, the Minister's position did not dispose of the interlocutory application, but simply sought to defer it to be heard at a later date, presumably sometime between 12 December 2025 and before Christmas Day.
3. After the appellant indicated that he would press his interlocutory application, the Minister belatedly changed his position so as to provide an "assurance" (initially given to the appellant, but ultimately provided to the Court) that the appellant would not be removed while his appeal was on foot. In my view, this change of position amounted to a capitulation by the Minister on the substantive merits of the interlocutory application.
4. The Removal Practice Note does not provide a universal answer to any application by a party to proceedings before this Court for interlocutory relief to restrain their threatened removal from Australia. This is not to encourage unnecessary applications for interlocutory injunctions when there is no basis for any apprehension that the party might be removed from Australia. One of the objects of the Removal Practice Note, and the expectations clearly set out therein, is to facilitate the fair and efficient administration of justice by avoiding the need for detainees to apply for injunctive relief as a matter of course. Nevertheless, in circumstances where a detainee has been given some cause to apprehend that steps might be taken to effect their removal from Australia in the near future, a request for an interlocutory undertaking or an application for an interlocutory injunction is not necessarily met simply by pointing to the procedures contemplated by the Removal Practice Note.
5. In the present case, the Minister did not ultimately oppose the interlocutory application on the basis that it was premature, nor did he maintain the position that the Removal Practice Note provided sufficient reassurance to the appellant that he would not be removed from Australia during the course of his appeal. The Minister ultimately provided an assurance in the terms of the interlocutory injunction that was sought by the appellant. In my view, it was not unreasonable for the appellant to have pressed his interlocutory application in the circumstances, and it is appropriate that the Minister be ordered to pay his costs of that application.
6. Finally, I note that counsel for the Minister sought to highlight that the Minister had given an "assurance" to the Court, as opposed to an undertaking. Counsel accepted that there was no practical difference between these two concepts, at least for the purposes of the present proceeding. I was not made aware of any authority that draws a distinction between an "assurance" and an "undertaking" given to the Court by a party to proceedings, whether for the purposes of an application for interlocutory orders or otherwise. Accordingly, I propose to treat the Minister's assurance as having the full effect of a formal undertaking, and would discourage any such semantic distinctions from being drawn in future cases.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan.