Kauroo v Commonwealth of Australia [2025] FCA 1573

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

1. Mr Pavan Kumar Kauroo is a citizen of Mauritius. He was born there on 19 April 1989. On 20 June 2008, Mr Kauroo was granted offshore under the Migration Act 1958 (Cth) (the Act) that class of visa known as a student (class TU) (subclass 572) visa (student visa). On 30 July 2008, Mr Kauroo came to Australia pursuant to that student visa. He was therefore not, at the time of his arrival in 2008, an unlawful non-citizen. That position changed, though. On 24 December 2009, he was served with a notice of intention to cancel his student visa. On 3 March 2010, that student visa was cancelled pursuant to s 116 of the Act. Mr Kauroo then received a bridging visa, class E, that same day.
2. The subsequent fate of Mr Kauroo's visa history is described in an affidavit of Mr Maximillian Pilstsch. It is not necessary to relate that in detail, only to note that on 7 January 2011, Mr Kauroo's bridging E visa ceased. A consequence of that is that he became thereafter an unlawful non-citizen for the purposes of the Act. He has not held any subsequent visa under the Act.
3. Earlier this year, on 10 June 2025, Mr Kauroo came to the attention of the police in Victoria. Suffice it to say, a sequel to that is that he was detained under s 189 of the Act. Mr Kauroo has remained in immigration detention since 10 June 2025.
4. Section 198(5) of the Act 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. On 11 November 2025, Mr Kauroo was served with a notice of an intention to remove him from Australia. The first sentence of that notice states:

I wish to advise you that you are liable for removal from Australia under the following provision of the Migration Act 1958:

1. Mr Kauroo is due to be removed from Australia to Mauritius tomorrow, ie on 19 November 2025.
2. Yesterday, solicitors acting but recently for Mr Kauroo filed in the Court's Victorian District Registry what at least purported to be an originating application for relief under s 39B of the Judiciary Act 1903 (Cth). It is necessary to say "purported" because, although a claim for interlocutory relief is specified in that originating application, the application as filed did not claim any substantive final relief. The interlocutory relief claimed is:
   1. Until final determination of the legality of any pending deportation of the Applicant or further order, the Respondent whether by themselves, their officers, delegates, employees, agents or otherwise (including by any person meeting the definition of officer in s 5 of the Migration Act 1958 (Cth)), that an injunction be granted restraining the Respondent from removing the Applicant from Australia.
3. Although, as one might have hoped and expected, the absence of a claim for substantive relief was not signalled to those acting for Mr Kauroo before the submissions made by counsel for the Commonwealth today, that does not detract from the correctness of the proposition advanced in those submissions. That is that a claim for interlocutory relief must support a claim for final relief. Put another way, a claim for interlocutory relief without a foundation in claimed substantive relief is no claim at all.
4. The jurisdiction which must be involved is the jurisdiction to grant the substantive relief. The interlocutory relief goes to support the integrity of the invoked jurisdiction, by the preservation of a particular position, pending the hearing and determination of whether an applicant is entitled to substantive relief.
5. Immediately realising this deficiency upon its airing, counsel for Mr Kauroo foreshadowed that the application would be amended, so as to claim at least an injunction against the Commonwealth restraining removal.
6. A claim for prohibition was also canvassed, and it was appreciated that such a claim could only go against an officer of the Commonwealth, of which the Minister for Home Affairs would offer a paradigm example. But the Minister, at present is not a party to the proceedings. Appreciating this, the further submission for Mr Kauroo, was that the amended originating application would include amendment of respondents so as at least to include the Minister for Home Affairs as the responsible Minister, against whom prohibition would be sought.
7. Upon this becoming apparent, and quite fairly, Mr Hosking for the Commonwealth no longer pressed that particular alleged deficiency in the originating application as a basis for resisting the grant of any interlocutory injunctive relief. He also, again quite fairly, conceded that, given the imminence of removal, if a serious question to be tried were demonstrated, a prima facie case, then the balance of convenience would favour the granting of interlocutory injunctive relief.
8. The grounds of Mr Kauroo's substantive case, hardly surprisingly, in the absence of a pleaded claim for substantive relief in the originating application, only revealed themselves in the oral submissions advanced on his behalf by counsel. There appear to be two limbs.
9. One is that s 198 of the Act is inapplicable to him, and thus gives rise to no statutory obligation to remove him, because, although a non-citizen, he is not an alien. Thus, so the submission goes, his circumstances are not materially distinguishable from those in Love v Commonwealth (2020) 270 CLR 152.
10. In Love, by a majority, the High Court concluded that Aboriginal Australians understood, according to the tripartite test in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, fall outside the legislative competence granted to the Commonwealth Parliament by s 51(xix) of the Constitution to make laws with respect to aliens.
11. The alternative foundation for the claim for substantive relief was said to be that it was for the Minister to demonstrate that Mr Kauroo was an alien, as well as a non-citizen. So much was said to flow from s 198 of the Act, as read in conjunction with s 189. Particular reliance was placed in this regard on an observation made by Allsop CJ in McHugh v Minister for Immigration [2020] FCAFC 223; (2020) 283 FCR 602, at 617, [51]. His Honour's observations there were directed to section 189 in the main. However, in the concluding sentences of that paragraph, his Honour also stated:
    1. ... Given the relationship between deportation and detention (which underpinned the reasons of the justices in Re Patterson, especially Gaudron J), as the time for execution of the deportation power and the physical act of deportation approaches, it is difficult not to see the justification for detention as converging with the justification for deportation: proof of alien status of the person.
12. With respect, some care needs to be taken with that observation, which was not the subject of any express concurrence by the other judges who constituted the Full Court. In that case, the observation was made prior to a sequel to Love in the High Court, namely Thoms v Commonwealth [2022] HCA 20; (2022) 276 CLR 466 (Thoms No 2).
13. Thoms No 2 highlights a qualitative distinction between s 189 and s 198. Thoms No 2 underscores that the reasonableness of the officer's suspicion is to be assessed by reference to what is known, or reasonably being capable of being known, at the time of detention. Thoms No 2 also establishes that what is capable of being known at the time of detention includes the then state of the law; see Thoms No 2 at [44].
14. On the other hand, the authority for removal under s 198 is the existence, as at the time of removal of circumstances which engage the statutory obligation, which materially in this case is found in s 198(5) of the Act.
15. Here there has been, in my view, an administrative conclusion as recently as 11 November 2025, that, in the circumstances of this case, that obligation is engaged.
16. The notion evident enough in the last sentences in [51] of McHugh, that there exists a convergence might, with respect, have some truth in the abstract. However, as Thoms No 2 makes plain, the focus in relation to the legality of detention is reasonableness of suspicion, as at the time of detention. The focus in respect of a lawful obligation to remove under s 198 is different and later in time, and not grounded in a reasonable suspicion. It may be that all that the Chief Justice meant was that whatever may have been the state of understanding, the reasonable suspicion as at detention, would over time mature to the point where a conclusion was reached, not based on reasonable suspicion, but existence of facts, matters and circumstances reasonably giving rise to a conclusion, that the person concerned was a non-citizen, otherwise meant the criteria specified in section 198, and in such circumstances where the suggestion was raised as to non-alienage, was also an alien.
17. I mention this in a little detail, because were that the only basis upon which it was put that there existed a serious question to be tried, I would have very particular reservations as to whether there existed such a question reasonably. However, it is not necessary to reach any concluded view on that subject. The other foundation, upon which was said a serious question to be tried, has a much stronger foundation on the material to hand. That foundation is squarely based on an alleged correspondence between the circumstances of Mr Kauroo, and those of Mr Love.
18. As to that, and as was correctly highlighted by counsel for the Commonwealth, the onus of proving such correspondence, or more particularly, that he is not an alien in terms of that head of legislative competence, falls upon Mr Kauroo. It is up to him to show at trial, that both in law and in fact, he is not an alien, such that s 198 can have no lawful application to him.
19. For the present, the evidence must at least show a triable issue as to the tripartite test mentioned. That requires demonstration of: biological descent from an indigenous people; together with mutual recognition of the person's membership of the indigenous people by the person; and by the elders or other persons enjoying traditional authority among those people.
20. Based on information provided by Mr Kauroo, his solicitor deposes as follows:
    1. Mr Kauroo has resided in the Australian community without a visa from on or around 2015 until his detention on or around June 2025.
    2. Mr Kauroo is an Aboriginal Australian. His paternal grandfather, Ramduth Kauroo, was an Aboriginal person born in the Northern Territory of Australia. As an adult, Ramduth Kauroo travelled by boat from Australia to Mauritius. Ramduth Kauroo's biological son, Jayraz Kauroo, was later born in Mauritius on 29 November 1958. Jayraz Kauroo is Mr Kauroo's biological father. Jayraz Kauroo talked to Mr Kauroo about his Aboriginality and his grandfather's time in Australia.
    3. Mr Kauroo is recognised by the community he is descended from in East Arnhem Land, and identifies as an Aboriginal person.
21. Also, part of the evidence relied upon by Mr Kauroo are two letters, one is dated 19 September 2025, and is given by Terence Ritharrmiwuy Guyula. That letter is directed to whom it may concern, Australian Border Force, and states:

I am writing you this letter to further vouch for Pavan Kumar Kauroo. When I met Pavan on a few occasions, we discussed our common stories. I am sharing a few of these to show my connection o Pavan and his connection to this country.

My mother's family come from Numbulwar, and in this context, we have many similarities. Back in the days and even up till now, there are stories of a man named Kauroo, pronounced Kawrou, who left to the Indian Ocean by boat. According to stories, this happened in the early 1900s. Kauroo was born in Numbulwar and he spent much of his life in and around the East Arnhem Land and probably the Darwin Region as well.

When Pavan showed me a photo of his father, I was surprised that we looked so similar. Pavan's father and grandfather look me and other men of my family. Furthermore, my mother's community in Numbulwar has many similarities in terms of words and cultural practice as Pavan and his family have back in Mauritius, Indian Ocean.

My wife and I feel deeply connected to Pavan in the same way Pavan feels connected to this country and land. Thus, the reason why we would like to adopt him and make him part of our community.

For any more queries, I urge you to contact me. Please make the needful to let Pavan come and live in East Arnhem Land.

1. The other letter dated 12 August 2025 is directed by one Elvera Bukulatjpi of Nhulunbuy in the Northern Territory to the Department of Home Affairs. It states:

I, Elvira Bukulatjpi, is writing you this letter with deep concern. It has been brought to my attention that my son Pavan Kumar Kauroo has been detained by your authority for not having a valid visa. I would like to inform your office that I accept Pavan Kumar Kauroo as my son and likewise, members of my family accept him too.

I would like to urge your department to release Pavan from detention and allow him to travel to Nhulunbuy or Lake Evella for legal adoption processes. Or I would appreciate if you can advise on the adoption procedures while he is still in detention.

My family and myself would like to have our son Pavan to come, live and work with us in Nhulunbuy and Lake Evella. I hope that this letter will be taken into due consideration and we wait for a positive response from your direction.

1. The evidence also discloses that there are ongoing enquiries by Mr Kauroo's solicitors with various persons in Arnhem Land directed to the end of offering proof of the tripartite test at trial. I take notice of a recent substantive engagement of Victoria Legal Aid solicitors to act for Mr Kauroo in the institution and prosecution of these proceedings, and further, that Arnhem Land is a remote location in Australia, and certainly greatly remote from Melbourne.
2. The Commonwealth put in issue whether the material thus recited was sufficient to admit of a conclusion that there existed a serious question to be tried with reference to the tripartite test. In my view, there is such a serious question. It certainly is one which would require greater refinement and precision at trial in order to yield a conclusion as to that tripartite test being met, quite aside from any questions as to credibility either of the applicant or others who may come to give evidence. But questions as to credibility, save in the most stark of situations, are not for resolution at a claim for interlocutory injunction stage.
3. It seems to me that prima facie, in the material recited, there is some evidence of biological descent from an Aboriginal person and that that Aboriginal person is, in turn, a member of a particular family group in Arnhem Land. There is also some evidence of a mutual recognition within that family group, both within that family group and on the part of Mr Kauroo. It seems to me the evidence also points to recognition by whoever within the family group is entitled to make pronouncements that a person is or is not a member of the family group. Of course, there is, as I have observed, something of a generality at the moment in the evidence, but that is only to be expected, given the extremely limited timeframe for providing greater precision.
4. To reach a conclusion that there exists a serious question to be tried is to reach no conclusion at all as to whether the claim advanced must succeed, only to recognise that there is a serious question to be tried prima facie evidenced. Taking that into account, and the concession as to balance of convenience, I am satisfied that interlocutory injunctive relief should be granted. I emphasise that in so doing, I do that on the basis that there was advanced orally at least a claim for a substantive injunction preventing deportation on the basis of an absence of application of s 198 and, as also foreshadowed an amendment of the originating application so as to name an officer of the Commonwealth and seek prohibition against any such deportation.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.