KEA25 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1442

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. These Reasons for Judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and citations included where appropriate. An attempt has been made to render the orally delivered reasons amenable to being read. Prior to delivering Judgment I accepted for filing the Applicant's documents. These documents were sealed post hearing and delivery of my Reasons for Judgment when the matter was allocated a file number and file name.
2. The application before the Court is for an interlocutory injunction to restrain the First respondent (Minister) from removing the Applicant from Australia at 10:15am on 2 September 2025. The application for the interlocutory relief was made by the Applicant at approximately 1:20am on 2 September 2025 which was then amended on two (2) occasions (Application) before 7:00am when the matter was listed for hearing (Hearing).
3. The Applicant was directed to file any affidavit on which they sought to rely and an outline of submissions by 6:00am. The Applicant filed an affidavit which exhibited correspondence and curiously an outline of submissions. For completeness I have accepted all these documents for filing.
4. The Applicant is presently detained in the Villawood Immigration Detention Centre.
5. The Applicant was represented by Mr Widjaja of Counsel and the Minister was represented by Mr Orchard of Sparke Helmore Lawyers.
6. Despite the various iterations of the Application, the Applicant pressed only Grounds 2 and 3 of the Application, as amended, conceding that Ground 1 was beyond the jurisdiction of this Court.
7. The two (2) grounds pressed by the Applicant are:

[...]

1. The Applicant's visa application has not been finally determined as that term is defined in section 11A of the Migration Act.

Particulars

(a) The Administrative Review Tribunal has not made a decision on whether the Applicant's application for review dated 4 July 2025 was validly made.

1. In the alternative, the scheduled removal of the Applicant from Australia is being affected by the Respondent contrary to the law, in that, the power to remove arises on a final determination of a valid substantive visa application.

Particulars

(a) Particular (a) of Ground 2 is repeated.

1. From what I am able to ascertain from the material filed on behalf of the Applicant that is relevant to the matter before me is that the Applicant filed an application for merits review in the Administrative Review Tribunal (Tribunal) of a delegate's decision on 11 June 2025 to refuse an application for a protection visa outside the prescribed time, namely within 14 days of the notification of the delegate's decision which in this case was by 25 June 2025. The application for merits review was not received by the Tribunal until 4 July 2025.
2. On 10 July 2025 the Tribunal invited the Applicant to make comments on whether the review was properly before it, with such comments due by 18 July 2025. The Tribunal again wrote to the Applicant on 26 August 2025 seeking comment by 2 September 2025 from the Applicant as to whether the notification letter of the delegate's decision substantially complied with the notification provisions in the Migration Act 1958 (Cth) (the Migration Act) because it contained sufficient information to allow the Applicant to exercise his rights of review. The Tribunal advised the Applicant that it would consider any comments made in determining whether the review is properly made.

THE APPLICATION FOR AN INTERLOCUTORY INJUNCTION

1. The Court has the power under s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to grant interlocutory orders. This includes a power of equity traditionally exercised to grant injunctions to preserve the status quo, pending determination of a claim for a legal remedy: see AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 192 at [8].
2. The principles associated with the granting of an interlocutory injunction of the type sought by the Applicant are well settled.[1] Firstly, it must be established by the Applicant that there is a serious issue to be tried. This has also been referred to as a prima facie case or an arguable case in the authorities. Secondly, the balance of convenience must be served by the grant of an injunction. Both these issues are to be considered together.[2]
3. The Applicant submitted that the power to deport an applicant under s 198(5A) of the Migration Act prevents the removal of the Applicant where his protection visa has not been finally determined. Section 11A defines when applications are finally determined under the Migration Act. The Applicant relies upon s 11A(1)(a) in this regard. In short the submission of the Applicant was that while the Tribunal is considering whether the Applicant's review application was properly made it has not been finally determined in accordance with section 11A(1)(a).
4. The Minister submitted that s 11A(1)(a) and (b) must be read disjunctively. Section 11A(1)(b) provides that:

(1) An application under this Act is finally determined when:

[...]

(b) a decision that has been made in respect of the application was subject to some form of review by application to the ART under Part 5 but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

1. Section 347(3) prescribes the timing for an application for review to be made to the Tribunal within 14 days after the day the applicant is notified of the decision if the applicant is in immigration detention and also relevantly s 347(5) which excludes the operation of s 19 of the Administrative Review Tribunal Act 2024 (Cth) regarding discretion to extend time with respect to reviewable migration decisions.
2. I asked both representatives whether they could direct me to any authorities regarding their client's respective decisions, neither party was able to do so.
3. Reading s 11A together with s 347 it seems that where a review application is made out of time cannot be subject to "any form of review" as contemplated by s 11A(1)(a) as it is not within the jurisdiction of the Tribunal. The operative provision here is 11A(1)(b) and this section in my view provides a complete answer to the proceedings before me.
4. Based on the material before me and the submissions made, I must conclude that the Applicant is unable to establish a prima facie case. There is no serious issue to be tried.
5. I must have regard to the statutory duty imposed on an official by s 198(6) of the Migration Act and the Minister referred me to the case of the Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34; (2024) 302 FCR 159 at [130] where Colvin and Jackson JJ said that "[i]n considering the balance of convenience [the Court] will have due regard to the statutory duty [in s 198] and will require a strong case or serious consequence or both in order to justify relief".
6. In light of my finding with respect to a lack of a prima facie case the substantive judicial review there is no reasonable justification to interrupt the legislative intention under s 198(6).
7. There is no material on the balance of convenience before me that is of such weight, in light of my findings regarding a serious lack of a prima facie case, which result in me finding that I should grant an interlocutory injunction in favour of the Applicant. The balance of convenience favours the Minister. The Application for an interlocutory injection restraining deportation must be dismissed.

1. The Applicant has not established a prima facie case which would warrant the granting of an injunction. I have determined that the Application seeking an urgent injunction restraining the Minister from removing the Applicant from Australia be dismissed.
2. I now turn to the issue of costs. I ask the Minister to address me on costs in circumstances where the Applicant has been unsuccessful. The Minister seeks costs on scale. The scale amount is set out in Item 2 of Division 1, Part 3 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). The Applicant is to pay the Minister's costs in the sum of $4,553.02.
3. Orders will be made accordingly.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Bingham.

[1] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, [19] and [65]-[72]; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; Australian Broadcasting Authority v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

[2] Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156; (2011) 217 FCR 238, [60]-[67].