MCVN v Minister for Immigration and Citizenship [2025] FCA 1271

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1. The costs of the interlocutory application are reserved.
2. Each of the parties has liberty to apply on reasonable notice.

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

(Delivered ex tempore, revised from transcript)

1. On 14 October 2025, the applicant filed an application for an extension of time to lodge an originating application for review of a decision made by the Administrative Appeals Tribunal (as it was then called), which affirmed a decision by a delegate of the Minister to refuse to grant a protection visa to the applicant.
2. The applicant also filed an urgent interlocutory application for orders restraining the Minister (including by his officers, delegates, servants or agents) from removing the applicant involuntarily from Australia until the hearing and determination of his application for an extension of time and, if an extension of time is granted, the application for review.
3. In an accompanying certificate of urgency, the applicant's solicitor stated that the applicant had been notified that he will be removed from Australia on 16 October 2025.
4. As will appear from the facts set out below, the Minister proposes to remove the applicant to Nauru pursuant to ss 198 and 198AHB of the Migration Act 1958 (Cth), after having given notice to the applicant that s 76AAA applies to him. The effect of s 76AAA is that, if a non-citizen who holds a Subclass 070 (Bridging (Removal Pending)) visa (BVR) is granted permission to enter and remain in a foreign country that is a party to a "third country reception arrangement", the BVR ceases to be in effect immediately after the person receives or is taken to have received notice that the section applies in relation to that non-citizen. There are exceptions to the application of s 76AAA, as set out in s 76AAA(1)(d).
5. For such purposes, a third country reception arrangement is defined in s 198AHB(1) of the Migration Act as an arrangement entered into by the Commonwealth with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.
6. The Minister refused to provide an undertaking not to remove the applicant from Australia, and opposed the interlocutory application.
7. For the following reasons, I am satisfied that there is a serious issue to be tried as to whether the applicant should be granted an extension of time to lodge an originating application, and whether he should be granted the relief sought in the originating application. I am also satisfied that the balance of convenience favours the grant of the interlocutory orders sought by the applicant.

1. The applicant is a citizen of Eritrea who arrived in Australia on 2 June 2010 as the holder of a Refugee (Class XB subclass 200) visa.
2. On 16 December 2019, the applicant's Refugee visa was cancelled under s 501(3A) of the Migration Act, which relevantly provides for the mandatory cancellation of a visa if the Minister is satisfied that the person does not pass the character test because of a substantial criminal record on the basis that the person has been sentenced to a term of imprisonment of 12 months or more.
3. Following the cancellation decision, the applicant was taken into immigration detention in around April 2020.
4. On 23 November 2020, a delegate of the Minister decided under s 501CA not to revoke the cancellation decision. On 16 February 2021, the Tribunal affirmed the non-revocation decision.
5. On 8 April 2021, the applicant applied for a Protection (subclass 866) visa. A delegate of the Minister refused to grant a Protection visa to the applicant, based on a finding that the applicant, having been convicted of a particularly serious crime, was a danger to the Australian community for the purposes of the criteria in s 36(1C)(b) and (2C)(b)(ii) of the Migration Act. In reaching this decision, the delegate accepted that Australia has protection obligations to the applicant with respect to Eritrea within the meaning of s 36(2)(a) and (aa). It is therefore not in dispute that a protection finding has been made for the applicant with respect to Eritrea for the purposes of s 197C(3).
6. On 8 August 2023, the Tribunal affirmed the delegate's decision to refuse to grant a protection visa to the applicant. This is the decision in respect of which the applicant now seeks judicial review, by the proposed originating application that is the subject of the application for an extension of time.
7. On 23 November 2023, following the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137, the applicant was granted a BVR and released from detention on the basis that there was no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. He has subsequently been granted a series of BVRs, the most recent of which was granted on 6 November 2024.
8. On 30 September 2025, the Minister gave the applicant notice that s 76AAA applies in relation to him. The notice stated that, on 26 September 2025, the applicant had been granted permission to enter and remain in Nauru, as a party to a third country reception arrangement with the Commonwealth that is in force. The notice attached a copy of the "long term stay visa" that had been granted to the applicant permitting him to enter and remain in Nauru for a minimum period of 30 years, subject to the terms and conditions prescribed by Schedule 3 of the Immigration (Long Term Stay Visa) Regulations 2025 (Cth). The notice also relevantly stated that the applicant's protection visa application has been finally determined, and that s 197C(3) does not prohibit his removal to Nauru.
9. Upon the applicant being taken to have received the notice under s 76AAA, the applicant's BVR ceased to be in effect. As a consequence, he was again taken into immigration detention on 1 October 2025. That detention is lawfully authorised by ss 189 and 196 of the Migration Act if and for so long as there is a real prospect of his removal to Nauru becoming practicable in the reasonably foreseeable future, pursuant to a grant of permission to enter and remain in Nauru under the third country reception arrangement that has been entered into by the Commonwealth with Nauru.
10. On 1 October 2025, the applicant was given a notice of intention to remove him from Australia on or after 8 October 2025. On 10 October 2025, the Minister's solicitor informed the applicant's solicitor that the applicant's removal was not scheduled to occur before 16 October 2025.

1. In support of the interlocutory application, the applicant relied on an affidavit affirmed by him on 13 October 2025, together with three affidavits of Hannah Dickinson affirmed on 13, 14 and 15 October 2025 respectively. In the course of the hearing, the applicant filed a further affidavit of James Muirhead affirmed on 15 October 2025.
2. The Minister relied on an affidavit of Madisen Scott affirmed on 15 October 2025.
3. The principles governing the grant of interlocutory injunction are settled. The applicant is required to demonstrate: first, that he has a prima facie case or has raised a serious question to be tried in relation to the relief sought in the proceeding, such as to justify the grant of interlocutory relief pending the hearing and determination of the proceeding; and second, that the balance of convenience favours the grant of the interlocutory relief sought: see Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J), [65] (Gummow and Hayne JJ). These two requirements involve related inquiries, and each should not be considered in isolation from the other: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [67] (Dowsett, Foster and Yates JJ).

1. The Minister filed a notice of objection to competency of the application for an extension of time as initially filed by the applicant, on the ground that the applicant had failed to comply with the requirements of s 486D(2) of the Migration Act which requires him to disclose to the Court any judicial review proceeding already brought by him in any court in relation to the Tribunal's decision.
2. On 16 October 2023, the applicant filed in this Court an application for an extension of time under r 33.13 of the Federal Court Rules 2011 (Cth) "to start an appeal mentioned in section 44(2A) of the [Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)]". The application was assigned the file number WAD247/2023.
3. It is common ground that s 44(2A) (as then in force) did not apply to the Tribunal's decision (see former s 43C of the AAT Act), and that this Court would not have had jurisdiction to hear any appeal under that section. The application was therefore patently misconceived. This raises significant doubts as to whether the applicant was properly advised, or indeed received any advice from a qualified legal practitioner with experience in the field of migration law. The extension of time application was accompanied by an affidavit purportedly sworn by the applicant on 11 October 2023. It suffices to say that the manner in which that affidavit was drafted does not give any confidence that the applicant received proper assistance or guidance in bringing his application.
4. By consent orders made on 26 February 2024, the application in WAD247/2023 was discontinued, with an order that the applicant pay the Minister's costs fixed in the sum of $1,500.
5. When the application for an extension of time was initially filed on 13 October 2025, the applicant did not disclose the previous proceedings in WAD247/2023, either in the application itself, in the supporting affidavits, or in the draft originating application for review of the Tribunal's decision.
6. Section 486D(2) has been construed as imposing a jurisdictional precondition that must be met on the commencement of proceedings, and cannot subsequently be "cured" by amendment: see TCWY v Minister for Immigration and Border Protection [2018] FCA 804; (2018) 74 AAR 485 at [28]-⁠[34] (Perry J); DZY17 v Minister for Home Affairs [2018] FCAFC 196; (2018) 267 FCR 673 at [29] (Besanko, Griffiths and White JJ).
7. It is necessarily implicit in the decision in TCWY that an application for an extension of time is a "proceeding" within the meaning of s 486D(2), which cannot be commenced without meeting the disclosure requirements imposed by that provision: see TCWY at [3].
8. Further, the Full Court held in DZY17 that s 486D(2) requires the disclosure of an earlier judicial review proceeding even if it was discontinued without any judicial consideration or determination of the merits of the proceeding.
9. Although the point was not specifically determined in either TCWY or DZY17, I consider that s 486D(2) applies to a previous proceeding comprising an application for an extension of time to bring a proceeding for judicial review of or appeal from a tribunal decision. In my view, such an application is a proceeding seeking the exercise of the Court's original jurisdiction in relation to the tribunal decision, within the definition of "judicial review proceeding" in s 486D(5). For such purposes, it is immaterial that the previous application brought by the applicant in WAD247/2003 was misconceived and that the proposed appeal would itself have been incompetent.
10. Accordingly, s 486D(2) is applicable and required the previous proceeding in WAD247/2003 to be disclosed to the Court before the applicant could commence the current proceeding seeking an extension of time to seek judicial review of the Tribunal's decision. The application as originally filed did not meet that jurisdictional precondition, and must be dismissed as incompetent.
11. However, it is common ground that s 486D(2) does not prevent the applicant from filing a fresh application for an extension of time in relevantly identical form, but with the disclosure of the earlier proceeding as required by s 486D(2): see TCWY at [33] (Perry J); DZY17 at [14], [29] (Besanko, Griffiths and White JJ). Accordingly, the applicant in the present case has now filed a fresh application that complies with the disclosure requirements, and which enlivens the court's jurisdiction to hear and determine the interlocutory application. The Minister has not raised any objection to the competency of the fresh application.
12. The parties agreed that it was necessary or convenient to make orders reserving the costs of the first proceeding to be determined in the fresh proceeding, and for all affidavits filed in the first proceeding (both by the applicant and by the Minister) to be treated as evidence in the fresh proceeding.
13. One might be forgiven for observing that this exercise is somewhat of a triumph of form over substance, at least in the present matter. Nevertheless, it is necessary in order to comply with the strict jurisdictional requirements that have been imposed by the Parliament.

1. The Minister submits that the applicant has not established a prima facie case for the grant of an extension of time.
2. The Minister submits that the length of the delay in seeking review of the Tribunal's decision (being slightly in excess of two years) is such that the applicant would need to demonstrate that the case is exceptional in order to warrant the grant of an extension of time: see Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 459 (McHugh J); Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at [13] (McHugh J); Vella v Minister for Immigration and Border Protection [2015] HCA 42; (2015) 90 ALJR 89 at [3] (Gageler J); cf. Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17]-⁠[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
3. The Minister also submits that:

(a) the applicant has not provided an adequate explanation for the delay;

(b) there is prejudice to the Minister that would weigh against the grant of an extension of time, including the wasted costs of the previous litigation and the Minister's expectation that the validity of the Tribunal's decision was no longer in issue; and

(c) the substantive grounds of the proposed originating application have insufficient merit or prospects of success to justify the grant of an extension of time.

1. In my view, while the length of the delay is significant, it does not of itself mean that there is no serious question as to whether an extension of time would be granted. In this regard, the references in Gallo, Marks or Vella to a case needing to be "exceptional" for time to be extended by many months should be considered in their context - for example, where the delay was "simply because the applicant had refrained from appealing until he or she had researched the issues involved" (Gallo at 459) or because of an inability to obtain favourable advice (Marks at [17]); where the delay was "lengthy and unexplained" (emphasis added) (Tu'uta Katoa at [18]); where the applicant had an opportunity to raise issues in earlier litigation (Vella at [19]-[20]); or where the proposed application had no prospect of success (Gallo at 459 and Marks at [17]). Ultimately, the relevant question under s 477A(2) of the Migration Act is whether it is necessary in the interests of the administration of justice to make an order to extend time, having regard to "a myriad of facts and circumstances": Tu'uta Katoa at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
2. In relation to the explanation for the delay, the applicant gives the following evidence in his affidavit.

(a) The applicant says that he was in detention at the time of the Tribunal's decision, and was told by a lawyer who was assisting him that he had no options, and that the lawyer could not help him further. He says that, while he accepted that advice, he did not understand his situation and did not know where he could get further help.

(b) The applicant says that while he held a BVR, he thought that there might be a way to become a permanent resident again after time, based on his behaviour if he stayed out of trouble. He says he knew that he could not be returned to Eritrea because of the harm that he would face there, and that he had no idea that he could ever face removal to Nauru.

(c) When the applicant learned that he was going to be removed to Nauru, he contacted the Refugee Immigration Legal Service in Brisbane, and he was referred to Russell Kennedy for legal advice on 10 October 2025.

1. The Minister submitted that the commencement by the applicant of the earlier proceeding in WAD247/2003 belies his claim that he was unaware of what legal steps he could take in relation to the Tribunal's decision. I do not accept that submission. As discussed above, the previous proceeding was patently misconceived and does not suggest that the applicant was in receipt of any proper advice about his legal position.
2. More generally, I accept that the applicant did not pursue any challenge to the Tribunal's decision after his release from detention because he held the view that he could not be returned to Eritrea, and that the prevailing status quo (from his perspective at least) was that he was living in the community and rebuilding his life. His legal position has been significantly altered by the enactment of the amendments that introduced ss 76AAA and 198AHB of the Migration Act, and by the recent application of those amendments to him.
3. Following those developments, the applicant obtained legal advice, in the light of which he now seeks to bring these proceedings which challenge the validity of the Tribunal's decision to refuse to grant him a protection visa. It may be noted that it is a precondition to the application of s 76AAA that the applicant's protection visa application has been finally determined. If the applicant were ultimately successful in these proceedings, the outcome would be that his application would then be subject to review by the Administrative Review Tribunal and would not be finally determined, precluding the application to him of s 76AAA and presumably restoring his BVR.
4. In such circumstances, I consider that there at least an arguable case that the applicant will be granted an extension of time. I note that this is generally consistent with the reasoning of the High Court in Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 at [7] (Gageler CJ, Edelman and Jagot JJ).
5. In relation to prospects of success, the proposed application raises three grounds of review.

(a) First, that the Tribunal erred in its construction of s 36(1C) of the Migration Act or asked itself a wrong question in concluding that the applicant was a danger to the community.

(b) Second, that the Tribunal made findings that were not open or were irrational.

(c) Third, that the Tribunal erred in its consideration of a report from a psychologist in relation to the applicant's risk of reoffending.

1. The parties made detailed submissions on the proposed grounds of review, in the course of which I was taken to relevant parts of the Tribunal's reasons for decision. After considering the Tribunal's reasons in the light of those submissions, I cannot say that the application does not raise any real or serious question as to whether the Tribunal fell into jurisdictional error. Those questions include the proper construction and application of s 36(1C)(b) and (2C)(b)(ii) of the Migration Act, which reflect and give effect to the provisions of Art 33(2) of the Convention Relating to the Status of Refugees: opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954). They also include the manner in which the Tribunal relied on an expert psychological report in making findings about the applicant's risk of reoffending. Having reached this conclusion, I consider that it is not appropriate on an interlocutory application of this nature to address the proposed grounds of review in further detail.
2. Accordingly, I consider that there is a serious question to be tried as to whether the applicant will be granted an extension of time, and whether the applicant will establish one or more of the proposed grounds of review.

1. The applicant submits that the subject matter of the proceeding will be destroyed if the applicant is removed to Nauru, because the applicant could no longer be granted a protection visa once he is removed from Australia: see s 36(2) of the Migration Act; cl 866.411 of Sch 2 to the Migration Regulations 1994 (Cth). This is not disputed by the Minister. Accordingly, the removal of the applicant to Nauru will render the current proceedings futile.
2. The Minister nevertheless argues that there are significant factors that weigh against the grant of an interlocutory injunction.
3. First, the Minister submits that the grant of an injunction would restrain the enforcement of the law by preventing officers of the Commonwealth from performing a statutory duty, and thereby frustrate the legislative scheme of the Migration Act: see e.g. CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [15] (Mortimer J). While I have taken this matter into account, I do not consider that it provides a strong reason not to grant an interlocutory injunction in the present case. The statutory duties under the Migration Act accommodate the grant of interlocutory relief to protect the integrity of judicial processes and to preserve the ability of a court to grant relief in matters within its jurisdiction: see generally Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; (2025) 99 ALJR 486 at [4], [25], [29], [35]-[37], [40] (Gageler CJ, Gordon, Gleeson and Jagot JJ).
4. The Minister also submits that the applicant has had an opportunity to seek review of the Tribunal's decision, which he elected to discontinue. I have addressed this matter above. I do not regard the previous discontinued proceedings as having reflected any serious invocation of the jurisdiction of this Court to review the Tribunal's decision. The applicant is not seeking to "re-agitate" any application for such review.
5. More generally, the circumstances of the applicant weigh in favour of the grant of interlocutory injunction to prevent his removal to Nauru, pending the hearing and determination of the current proceeding.

(a) In his affidavit, the applicant says that he was in poor physical and mental health when released from detention. He went to live with his mother and four siblings. He had difficulties in obtaining work due to the restrictive conditions to which his BVR was initially subject, including the requirement to wear an ankle monitor and to observe a curfew. He says that his situation has improved since these conditions were removed in late 2024, and he was able to get work in a warehouse hear his home. He says that he has not gotten into any trouble in the period since he was released from detention in November 2023. There is no evidence before the Court to suggest the contrary.

(b) The applicant says that he is worried that he will not be able to get medical help on Nauru, and holds fears about what the future holds for him on Nauru. He worries that he will not be able to cope with being permanently separated from his family, who he says is everything to him. Further, the applicant says that his mother has health problems, and that he wants to help her and not to cause her to worry.

1. I accept that those considerations are relevant to the potential prejudice to the applicant if an interlocutory injunction is not granted, and can be given weight when assessing the balance of convenience.
2. For these reasons, it is appropriate to grant an interlocutory injunction in the terms sought by the applicant.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan.