Erueti v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 961

1. These two sets of proceedings have come before me at short notice as duty judge and have been dealt with together. Mr Erueti, the applicant in NSD1364/2025, and Mr Stewart, the applicant in NSD1366/2025, have each appeared by AVL from the Villawood Immigration Detention Centre. They have each been informed yesterday that they are to be transferred from Villawood to Yongah Hill Immigration Detention Centre, which is located in Western Australia. They have each put on an application seeking interlocutory orders restraining the Minister, the respondent, and Australian Border Force, the second respondent in NSD1364/2025, from transferring him from Villawood to Yongah Hill or to any other detention centre outside New South Wales. Each of the applications is in similar form.
2. The matter came on urgently at 5.30pm. The applicants are unrepresented, and they have had very little time to seek any legal advice in relation to this transfer happening, as it will, if no injunction is granted, in a matter of hours. Mr Johnson of counsel appears for each of the respondents and has sought to rely on an affidavit in each case by Mr Hillyard, a solicitor, who has annexed emails dated, in Mr Erueti's case, 1 August 2025, and, in Mr Stewart's case, 22 July 2025, recommending the interstate transfer of each of the applicants. The recommendation was approved in each case on the basis of capacity issues of the various detention centres.
3. In Mr Erueti's case, the matters taken into account were his criminal history, the best interests of his children (Mr Erueti, despite raising this in his application, does not have any children in Australia), his health and welfare, and some other matters relating to ongoing litigation and behavioural considerations. In relation to Mr Stewart, it was noted that he did have children in New South Wales or the ACT, but that he had not had visits from them in the ten months he had been in Villawood. Again, the aspects of safety and security, health and welfare were relied upon.
4. Each of the applicants takes points with the recommendations and say they are not accurate. In particular, they say that they have not had their mental health concerns properly considered. I note that I have no objective evidence of mental health concerns apart from what each of the applicants has said today before me, but I will take what they say at its highest for the purposes of this interlocutory application. Neither of the applicants have sought any final relief, and accordingly the principle expressed by the Full Court in Samsung Electronics Company Limited v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [44]- [74] that the legal or equitable rights to be determined at trial must be identified. As noted by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] FCA 63 at [15]:

If the respondent cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears.

1. The applicants each need to show that firstly, there is a serious question to be tried or that they have made out a prima facie case on the basis that, if the evidence remains as it is, there is a probability that, at any trial, the applicant will be held entitled to relief. Secondly, that damages will not be an adequate remedy. And thirdly, that the balance of convenience favours the granting of an injunction (Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148; [1986] FCA 58 at 153 (Mason ACJ)).

1. The Migration Act 1958 (Cth) defines "detain" in s 5(1) as:

(a) take into immigration detention; or

(b) keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

1. That section defines "detainee" as "a person detained". There is no dispute that each of the applicants is a detainee.
2. Section 273 of the Migration Act defines "detention centre" as "a centre for the detention of persons whose detention is authorised under this Act." That section provides for detention centres to be established and maintained, and for regulations under subs (2) to deal with "the conduct and supervision of detainees", and "the powers of persons performing functions in connection with the supervision of detainees."
3. I agree with Mr Johnson's submission that the decision to transfer a detainee is an exercise of an administrative function rather than of a power provided by statute.

What must the applicants show in order for an order to be made?

1. I have considered, in relation to the case raised by each of the applicants, the likelihood of their being able to make out what appears to be the main route to a final order, should they make such an application; that being the question of legal unreasonableness in relation to the transfer from one detention centre to another. In Graham v Minister for Immigration and Border Protection and Others (2018) 265 FCR 634; [2018] FCA 1012, Tracey J said (at [123]):

A person who is properly detained under the Act pursuant to s 189(1) [such as the applicant in that case, as an unlawful non-citizen], has no right or interest to be detained in any particular place. He or she can lawfully be moved to any place of immigration detention without attracting procedural fairness obligations.

1. Later in that decision, his Honour said at [129]:

The Minister has a broad power to determine the place and mode of detention. The definition of "detain" in [s]5(1) of the Act, which refers to taking such action and using such force "as [is] reasonably necessary", does not employ words of limitation: VLAH at [9] (Ryan J); SBEG v Commonwealth at [49] (Keane CJ, Lander and Siopis JJ). While decisions as to the place of detention are not immune from judicial review, the broad nature of the power and breadth of considerations that may be taken into account mean that it will be difficult to establish legal unreasonableness.

1. In support of their applications and going to the question of legal unreasonableness, Mr Erueti spoke of his connections in New South Wales, his mental health interactions which include counselling and wellbeing sessions, and says that he has fears that any transfer would negatively impact his wellbeing. He says he is about to undergo a psychological evaluation. He says that the stated reason for the approval - that the facility is overcrowded - does not accord with his understanding. He says there are plenty of beds vacant at the moment. He further says that it will be difficult to continue his current investigation of revocation proceedings in relation to the cancellation of his visa, given that his legal representatives are in Sydney.
2. In relation to Mr Stewart, he says that he will be further away from his five children, one of whom is an adult, and the others being minor children. He was expecting a visit from them in the near future, but says that he has not been able to see them since he has been in Villawood because of difficulties in scheduling visits, and with the centre providing accommodations for those visits. He says that it would be impossible to see his family were he in Western Australia.
3. He says that his mental health is dependent on staying at Villawood where he has been settled and has not been taking drugs since he has been there. He says that the ongoing care that he gets for his various mental health and neurodiversity conditions are important to him, and that he feels that a sudden move to Western Australia would disconnect him from those services. He further says that he feels that the legal advice he would be getting from legal representatives would be less effective were it not in person, and that they are based in Sydney. Again, he is in the early stages of the ongoing litigation in relation to his visa.

1. I have considered each of the arguments and the factual issues raised by the applicants. While I am sympathetic to each of them as to the upheaval and impact that the transfer will have on each of them, it does not appear to me that they have made out the necessary element which needs to be made out in securing an interlocutory injunction; that is, that there is a serious question to be tried. As I have noted, they have not sought final relief. But leaving aside the issues I have cited above in Samsung Electronics, even if these applications were brought in the context of final relief on the basis of legal unreasonableness, it is difficult to see, given the broad and sweeping powers of the respondents in relation to determining the place and mode of detention pursuant to the Migration Act, how these applicants can establish legal unreasonableness in relation to the respective decisions.
2. Mr Johnson for the respondents has provided information, from the bar table but on instructions, that there is both provision for mental health and other health care at Yongah Hill which is similar to that at Villawood, and that the care that they have been receiving so far appears to including telehealth and other means which would not be affected by the move to Western Australia. Similarly, the arrangements for consultations with lawyers and seeking legal advice would be available in Perth, notwithstanding, of course, that should they decide to retain their Sydney legal representatives, there would not be the option for in-person conferences, but instead they would need to rely on AVL or telephone. It is trite to say that most legal proceedings have some element of those kinds of conferences these days, and indeed hearings in this court (such as the present) are often conducted by AVL without significant disadvantage to litigants.
3. If I were wrong in finding that they have not made out a serious question to be tried, it seems to me that they each would not meet the other part of the Castlemaine Tooheys' requirements, which is irreparable injury. Each of them has expressed concern to various degrees, Mr Stewart being very adamant that he will suffer injury. But the transfer is something that could be, if they were able to show that the decision were legally unreasonable in a properly brought proceeding, able to be reversed. And I am not satisfied that the balance of convenience would favour granting the injunction, given the evidence from Mr Hillyard.
4. Accordingly, I dismiss each of the applicants' claims for an interlocutory injunction.
5. The respondent has made an application for costs. As costs follow the event, the applicants will be ordered to pay the respondents' costs, as agreed or taxed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.