DZJ25 v Minister for Immigration and Multicultural Affairs [2025] FCA 386

1. The applicant entered Australia in October 2019 on a seasonal worker visa. On 1 May 2021 he applied for a protection visa. On 6 May 2021 he was granted a bridging visa.
2. On 6 August 2024 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa because the delegate was not satisfied that the applicant met the criteria in s 36(2) of the Act (the applicant is a refugee or is entitled to complementary protection). The applicant made no application to the AAT for a review of the delegate's decision under Pt 7 of the Act.
3. On 22 August 2024 the applicant was convicted in the Katherine Local Court of four offences involving assault, contravention of a domestic violence order (DVO) and making a threat to kill a person. He was sentenced to an aggregate term of 12 months' imprisonment. The sentence was backdated to 7 March 2024 which, I assume, was the date he was charged with the offences and taken into custody. The sentence was partially suspended permitting him to be released after 7 months.
4. On 9 September 2024 the applicant's bridging visa was cancelled because he failed the character test under s 501(6)(a) of the Act (substantial criminal record) read with s 501(7)(c) and the Minister (through a delegate) was required to cancel the visa under s 501(3A) of the Act in those circumstances. The applicant was invited to make representations to the Minister in accordance with s 501CA(3) of the Act but did not do so.
5. On 4 October 2024 the applicant was released from prison and taken into immigration detention under s 189 of the Act where he remains. As the applicant does not hold a visa he is an unlawful non-citizen within the meaning of the Act. An unlawful non-citizen detained under s 189 must be kept in immigration detention until, relevantly, removed under s 198 or granted a visa: s 196(1). An officer must remove as soon as reasonably practicable an unlawful non-citizen in certain circumstances relating to cancellation of a visa under s 501(3A) or refusal to grant a visa where the application has been finally determined: s 198(2B), s 198(6).
6. On 3 February 2025 Vanuatu issued a Certificate of Identity document for the applicant which is valid until 3 February 2026. After an unsuccessful attempt to notify and remove the applicant during February 2025, on 26 March 2025, the Department of Home Affairs notified the applicant of its intention to remove him from Australia to Vanuatu on 14 April 2025.

1. The applicant is self-represented. He submits that his first language is Bislama and he requested the assistance of an interpreter. The Court was not able to provide an interpreter due to the urgent nature of the application. However, I was satisfied that the applicant had sufficient command of written and spoken English to understand the substance of the proceeding and what was said during the oral hearing and to prepare his originating application and affidavit in support in English.
2. The originating application is in Form 70 under r 31.22(1) of the Federal Court Rules 2011 (Cth). It purports to request review of a 'migration decision'. The Minister contends that the application is misconceived and must be dismissed because the Court does not have jurisdiction in relation to the decision of the delegate to refuse to grant a protection visa or the decision of a delegate to cancel the applicant's bridging visa under s 476A of the Act.
3. Notwithstanding the form of the originating application, the relief sought does not readily fall within the meaning of judicial review of the kind that is referred to in s 75(v) of the Constitution. Relevantly, the applicant claims the following relief:

1. The Court appoints a pro bono solicitor to represent the Applicant.

1. The Court orders a late hearing before the Administrative Review Tribunal, along with a review of the Applicant's previous visa refusal. This request for reconsideration is made pursuant to the Federal Court of Australia case DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64, which established that many previously issued notifications, including those similar to the Applicant's, were legally defective and therefore invalid.
2. The Court halts the Applicant's forced deportation, scheduled for Tuesday, 14th of April 2025, until the matter is resolved.

1. The grounds include the following assertions:
   1. I currently do not possess a phone, and the Department continued to contact me via my previously nominated email address, which I no longer had access to.
   2. The Respondent could have provided me with crucial information and assistance in lodging my merits review. Additionally, I do not have login access to the computer room. The detention centre is currently in turmoil due to a transition in management - Serco lost its contract to MTC, leading to staff departures and protests as Serco refuses to pay severance to redundant employees.
2. The grounds of review were supported by facts deposed (albeit in conclusionary form) in the applicant's affidavit in support.
3. The prayer for relief includes the following:
   1. The Petitioner further petitions this Court to issue a declaratory judgment affirming the erroneous nature of the impugned decision and its deleterious impact on the welfare of the Petitioner's well-being.
4. The applicant's affidavit in support included some, but not all, of the documents relevant to his application. The Minister filed, read and relied upon an affidavit of Margarita Carmen Woollett affirmed 14 April 2025 which contained complete copies of the letter by which the applicant was given notice of the decision to refuse to grant him a protection visa and the reasons for that decision and the letter by which he was notified of the decision to cancel his bridging visa and other documents pertaining to that decision.
5. Based on the contents of the originating application and affidavit in support together with the applicant's oral submissions, the substance of the relief the applicant seeks is a declaration to the effect that the Minister failed to notify the applicant of the decision to refuse to grant the applicant a protection visa in the manner that s 66 of the Act requires because the letter by which he was notified of the decision did not 'state' the time within which the applicant had a right to review the decision under Pt 7 of the Act (as then enacted). If the notification were defective in the manner alleged, the time within which the applicant had to apply to the AAT for review under s 412 of the Act (as then enacted) would not have commenced running. As a consequence, immediately before the time at which Pt 7 of the Act and the Administrative Appeals Tribunal Act 1975 (Cth) were repealed the applicant would have been entitled to make an application to the AAT for review of the decision not to grant him a protection visa. In those circumstances, the applicant would now be entitled to make an application to the Tribunal: item 20 of Pt 4 of Sch 16 of the ART Transitional Provisions Act (No 1).
6. The applicant seeks an interlocutory injunction, in effect, to preserve his right to review the delegate's decision in the event that the notice of the delegate's decision was defective in the manner alleged.

1. The Court has power to grant an interlocutory injunction restraining the Minister from removing the applicant from Australia until his application for declaratory relief is heard and determined under s 23 of the Federal Court of Australia Act 1976 (Cth). Section 23 confers a broad power on the Court to make orders of such kinds, including interlocutory orders, as it 'thinks appropriate'.
2. The primary purpose of an interlocutory injunction is to keep matters in status quo until the rights of the parties can be determined at the hearing of the suit: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [9] (Gleeson CJ) citing Jordan F, Chapters in Equity in New South Wales (6th ed, 1947) at 146. Preserving the status quo is not confined to circumstances in which the interlocutory order is in the same or substantially the same terms as the final relief. Preserving the status quo can extend to any orders that ensure that the grant of the final relief sought is not rendered futile or that the processes of the Court are not frustrated. Thus, in the present case, granting an interlocutory injunction to prevent the removal of an unlawful non-citizen from Australia in order to preserve the subject matter of the proceeding is not confined to a proceeding in which the final relief sought is an order that the person cannot be lawfully removed from Australia. That is, it is not necessary that there be a direct challenge in the proceeding to the exercise of the power under s 198. 'As an incident of its statutory power to make such interlocutory orders as are judicially considered to be appropriate, the power of the Federal Court to "protect the integrity" of the processes before it "once set in motion" includes the vindication of its own authority to ensure it can determine the proceeding before it and grant final relief of utility'. There may be utility, in the relevance sense, in mere declarations as of right.: Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 at [23]- [25], [29]-[32] (Gageler CJ, Gordon, Gleeson and Jagot JJ).
3. The principles governing the circumstances in which a court will grant such an injunction are well-established. The Full Court set out the 'correct approach' in Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [52]- [74]. Applicants must first show that they have a prima facie case in the sense of 'a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial': Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at [65] (Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]). This is commonly referred to as a serious question to be tried. What will be sufficient will depend on 'the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order he seeks': Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 at 622. These same considerations apply in public law cases: Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu [2000] HCA 23; 171 ALR 341 at [7] (Gleeson CJ).
4. These two questions are not entirely distinct. To the contrary, as the Full Court emphasised in Samsung Electronics, the strength of an applicant's case is a factor to be considered in determining where the balance of convenience lies. Consequently, as Woodward J observed in Bullock v Federated Furnishing Trades Society of Australasia [1985] FCA 19; (1985) 5 FCR 464 at 472 (Smithers and Sweeney JJ agreeing at 467 and 469 respectively):

... [A]n apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it. ...

Is there a serious question that the notification failed to 'state' the time in which to apply for review?

1. At the relevant time, s 66(2)(d) provided that notification of a decision to refuse a visa must, if the applicant has a right to have the decision reviewed under Pt 5 or Pt 7 or s 500 - state: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be made; and (iii) who can apply for the review; and (iv) where the application for review can be made.
2. The Minister must have notified an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Act: reg 2.16(1) and reg 2.16(3) of the Migration Regulations 1994 (Cth). Section 494B(1) and s 494B(5) provided, relevantly, that one of the methods consisted of the Minister transmitting the document by email to the last known email address provided to the Minister for the purpose of receiving documents. Section 494B(1) and s 494B(2) provided that one of the methods also consisted of handing the document to the recipient.
3. Section 494C(1) and s 494C(2) provided that if the Minister gave a document to a person by the method in s 494B(2) the person was taken to have received the document when it was handed to the person. Section 494C(1) and s 494C(5) provided that if the Minister gave a document to a person by the method in s 494B(5) the person was taken to have received the document at the end of the day on which the document was transmitted.
4. Section 412(1)(b) provided that an application of review of a Part 7-reviewable decision must have been given to the AAT within the prescribed period, being a period not later than 28 days after the notification of the decision. Regulation 4.31 prescribed the period in which an application for review must have been made as, if the person was in immigration detention, 7 working days commencing on the day the person was notified, and if not in detention, 28 days commencing on the day the applicant was notified of the decision.
5. On the proper construction of s 66(d) of the Act the word 'state' means that the notification of the decision must set out the information in each subsection in a manner that is complete and clear. That is a question of fact. In the case of stating the time in which the application for review may be made, the notification must crystallise the period either expressly or by reference to objective facts from which the period can be ascertained on the face of the notification: Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136; 305 FCR 317 at [22]- [32] (Perram, Perry and Feutrill JJ) and the authorities there cited.
6. The notification of the delegate's decision to refuse to grant the applicant a protection visa in this case was a letter dated 6 August 2024. It included a statement to the effect that the transmission method was by email sent to a particular email address ending '@gmail.com'. The letter also included the following information.

...

Review rights

The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.

As this letter was sent by email and hand delivered to you, you are taken to have received it at the end of the day it was transmitted.

The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.

Lodging an application for merits review

Applications for review can be lodged online, in person, by post, email or fax to the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT) as provided below.

...

The letter then set out a website address for the AAT, physical and postal addresses for the AAT registries in each State, the Australian Capital Territory, the Northern Territory and Norfolk Island, an email address for the AAT and facsimile numbers for the registries in each State and mainland Territory.

1. Ms Woollett deposes that on 13 May 2021 the applicant advised the Department that his email address was the Gmail email address referred to in the notification letter. An exhibit to the affidavit is a screenshot of the Department's system showing the applicant's address as recorded by the Department over time. That screenshot contains a reference to a different email address ending '@madec.edu.au' as effective from 22 March 2023 to 2 September 2024. The Gmail address is recorded as effective from 13 May 2021 to 2 August 2021. Ms Woollett also deposes that on 6 August 2024 the notification letter was sent to the Gmail email address. The substance of certain of the facts deposed in the applicant's affidavit is that, because he was in custody at the relevant time, he was not able to receive emails sent to his applicable email address as of 6 August 2024. Otherwise, Ms Woollett deposes facts to the effect that the applicant was handed the notification letter on 8 August 2024.
2. On the evidence available, it is quite unclear whether the notification letter was sent to 'the last known email address provided to the Minister for the purpose of receiving documents'. The screenshot exhibited to Ms Woollett's affidavit suggests that the notification letter was not, in fact, sent to that address. Therefore, it is reasonably arguable that the applicant was not given notice of the decision to refuse the grant of his protection visa by the method specified in s 494B(5) and, therefore, he was not taken to have received that notice at the end of the day that document was transmitted for the purposes of 494C(5) of the Act. That is, it is reasonably arguable that the notification letter failed to 'state' the time in which the application for review may be made.
3. Further, even if the Gmail email address was the applicant's last known address for the purposes of receiving documents, in circumstances in which the applicant was in custody and was not able to receive electronic communications, there is a real question as to whether the notification letter taken with the objective facts crystallised the period. The letter does not indicate the date it was transmitted it could have been after the date of the letter. Therefore, if the applicant did not, in fact, receive the letter by email he had no way of determining the date of transmission and identifying the day from which the 28-day period commenced running. The statement is also somewhat confusing in that the letter refers to it being sent by email and hand delivered, yet it is taken to have been received, not on the date it was hand delivered, but the date it was transmitted. In these circumstances it is reasonably arguable that the notification letter does not 'state' the time in which the application for review may be made as required by s 66(2)(d).
4. It follows that there is a serious question to be tried as to whether the notification letter meets the description of a notification described in s 66(2)(d) of the Act.

1. The declaratory relief the applicant seeks in the proceeding may be regarded as a step along the way to making an application to the Tribunal for review of the delegate's decision to refuse to grant him a protection visa. It is self-evident that review of the delegate's decision would be rendered nugatory if he were removed from Australia and returned to the country in which he claims he will be subjected to harm. Therefore, if the applicant were removed from Australia to Vanuatu the subject matter of the proceeding would be effectively destroyed and the relief sought would be of no real utility. These are powerful considerations in favour of the grant of an interim injunction. That is so notwithstanding that there is a real risk of injustice to the Minister and the Commonwealth relating to the frustration of the legislative intention and scheme concerning removal of unlawful non-citizens should a decision to grant an injunction turn out to be the 'wrong' decision.
2. It is also of relevance that the effect of the declaration sought, assuming an application for review in the Tribunal were made, would be that the application for a protection visa would not have been finally determined. The existence of an extant application for a protection visa would affect the duty of an officer to remove the application under s 198(6) due to the delegate's refusal to grant a protection visa and may affect the duty of an officer to remove the applicant under s 198(2A) due to cancellation of the bridging visa. Put another way, the outcome of the proceeding may affect the lawful exercise of the power to remove the applicant under s 198 of the Act. Therefore, the exercise of power under s 198 is indirectly under challenge in the proceeding.

1. As already mentioned, the Minister contends that the application must be dismissed because this Court does not have jurisdiction to review either the decision not to grant a protection visa or the decision to cancel the bridging visa.
2. Section 476A(1) of the Act provides:

476A Limited jurisdiction of the Federal Court

(1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a) both:

(i) the Federal Circuit and Family Court of Australia (Division 2) transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and

(ii) the Federal Court confirms the transfer under section 32AD of the Federal Court of Australia Act 1976; or

(b) the decision is a privative clause decision, or a purported privative clause decision, of the ART on review under section 500; or

(c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or

(d) the Federal Court has jurisdiction in relation to the decision under section 176 (Federal Court has jurisdiction) or subsection 185(3) (referring questions of law) of the [Administrative Review Tribunal Act 2024 (Cth)].

Note: The Federal Court's jurisdiction referred to in paragraph (d) is limited: see section 474AA.

1. Section 5(1) of the Act defines a migration decision to mean:

(a) a privative clause decision [s 474(2)]; or

(b) a purported privative clause decision [s 5E]; or

(c) a non-privative clause decision [s 474(6)]; or

(d) an ART Act migration decision [s 474A].

1. Section 474(2) defines a privative clause decision to mean a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subss (4), (4A) or (5). Section 474(4) identifies decisions under certain provisions of the Act, regulations and instruments. Section 474(5) provides that the Regulations may specify that a decision, a decision included in a class of decisions under the Act, a regulation or another instrument under the Act is not a privative clause decision.
2. Section 5E defines a purported privative clause decision to mean a decision purportedly made, proposed to be made or required to be made under the Act, a regulation or other instrument that would be a privative clause decision if there were not a failure to exercise jurisdiction or an excess of jurisdiction in the making of the decision. The word 'decision' is defined in broad terms is s 474(3).
3. Section 474(6) provides that a decision mentioned in s 474(4) or s 474(4A) specified in a regulation made under s 474(5) is a non-privative clause decision. Section 474(7) clarifies that certain decisions of the Minister are privative clause decisions. Section 474A provides that certain decisions made under the ART Act set out in a table in that section are ART Act migration decisions.
4. The upshot of these provisions is that a decision of a delegate of the Minister not to grant a protection visa under s 65 and a decision of a delegate of the Minister to cancel a bridging visa under s 501(3A) of the Act are each a migration decision that is not a privative clause decision of the kind referred to in s 476A(1)(b) or s 476A(1)(c), the criteria in s 476A(1)(a) have not been satisfied and s 476A(1)(d) is not applicable. Therefore, this Court has no jurisdiction 'in relation to' each applicable migration decision.
5. Nonetheless, the phrase 'jurisdiction in relation to a migration decision' can be taken to be no wider than jurisdiction in public law remedies of direct judicial review of a migration decision: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 at [15] (Allsop CJ), [74] (Besanko J), [183] (Mortimer J) and the authorities there cited. Section 476A of the Act does not preclude the Federal Court from the exercise of the general civil (non-criminal) jurisdiction conferred on the Court under s 39B(1A)(c) of the Judiciary Act 1903 (Cth). In that regard the width of the conception of 'matter' must be borne in mind as must the width of the phrase 'arising under laws made by the Parliament': McHugh at [9]-[10].
6. It is reasonably arguable that a declaration of right regarding the extent to which the applicant was notified of a 'migration decision' in accordance with s 66 of the Act falls within the original jurisdiction of the Court conferred under s 39B(1A)(c) of the Judiciary Act. Put another way, notwithstanding the form of the originating application, it is reasonably arguable that the relief the applicant seeks is not, in substance, an application for direct judicial review of a migration decision that would engage the jurisdiction of the High Court under s 75(v) of the Constitution.

1. The declaratory relief the applicant seeks is reasonably arguable and the balance of convenience otherwise favours the grant of an interim injunction.
2. However, having regard to the following matters, I considered the duration of the interim injunction should be limited and the matter should be listed before a docket judge to consider whether the interim injunction should be continued, varied or discharged and whether the proceeding should otherwise be heard and determined on an expedited basis.

(1) Although reasonably arguable, there is a degree of uncertainty and doubt about the nature of the applicant's claim, the relief sought, and the Court's jurisdiction. Accordingly, the proceeding should be regularised and the question of the jurisdiction of the Court resolved as soon as reasonably practicable.

(2) There is presently no application for review of the decision to refuse the grant of the protection visa lodged in the Tribunal. The decision to refuse the grant of the protection visa was made in August 2024, the applicant has had actual notice of that decision since 8 August 2024 and yet no relief was sought in this Court until April 2025 after he was given notice of his impending removal from Australia. Therefore, the applicant has not been proactive pursuing the evident claim the subject of this proceeding or the consequential right to review said to flow from his claim.

(3) For so long as the applicant remains in immigration detention he will be deprived of his personal liberty. Albeit that detention is authorised under the provisions of the Act, it must be borne in mind that personal liberty is a fundamental, essential and important common law right and that, ordinarily, involuntary deprivation of liberty constitutes punishment.

(4) If the applicant's claim in the proceeding is unsuccessful, officers will remain subject to a duty to remove the applicant as soon as reasonably practicable under s 198 of the Act. The applicant's current travel documents will expire in February 2026. Therefore, if unsuccessful, any delay in the determination of the proceeding may impede the timely removal of the applicant from Australia.

1. The interim injunction was granted for a period of 28 days. Within that time it is expected that the applicant will be able to obtain legal advice and make any application necessary to amend and regularise his originating application (including any application to join additional respondents), a formal application for an interlocutory injunction supported by any further affidavit material, commence any proceedings in the Federal Circuit and Family Court of Australia (Division 2) that may be considered expedient and make any application for transfer of those proceedings to this Court under s 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and (or) for consolidation of that proceeding with this proceeding. Accordingly, orders have also been made requiring all necessary steps to be completed before the hearing as to whether there should be a continuation, variation or discharge of the interim injunction.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.