Preeti v Minister for Immigration and Citizenship [2025] FedCFamC2G 1628

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 are my reason for judgment for the orders pronounced by me on 6 October 2025.
2. The application before the Court is for an interlocutory injunction to restrain the First Respondent (Minister) from removing the Applicant from Australia on Tuesday 7 October 2025 at 2:30pm AEDT. The Application for interlocutory relief was made by the Applicant on 19 September 2025 (Application). The matter was listed on 2 October 2025 for a hearing on 6 October 2025 at 10:00am (Hearing). The Minister opposes the interlocutory relief sought by the Applicant.
3. The Applicant was directed to file an Outline of Submissions, proposed orders sought, and any affidavit material to be relied upon at Hearing by 6:00pm 2 October 2025. This was extended to 8:00pm following a request for an extension of time to file by the Applicant's solicitor. The Minister was directed to file an Outline of Submissions by 2:00pm on 3 October 2025. The timeframe for compliance was also extended at the Respondents' solicitor's request to 3:00pm that day.
4. The Applicant is detained in the Broadmeadows Immigration Detention Centre in Victoria.
5. The Hearing before me was confined to the interlocutory application as to whether an interim injunction restraining the Minister from removing the Applicant should be granted.
6. For the purpose of the interlocutory hearing the Applicant relied upon the Application filed 19 September 2025, the Affidavit of Mr Singh (the solicitor for the Applicant) and the Outline of Submissions filed 2 October 2025. The Minister relied upon the Affidavit of Mr Mak affirmed 3 October 2025 and Outline of Submissions filed 3 October 2025.

1. On 29 May 2024 the Applicant lodged an application for a subclass FA600 (visitor-Tourist) visa (Visa Application). This visa was granted on 1 June 2024. In the Visa Application, the Applicant stated that she had never been refused entry into a country before. She subsequently entered Australia on three occasions and remained here for a total of 248 days.
2. On 22 August 2025 at Melbourne Airport, the Applicant attempted to enter Australia for the fourth time. While in immigration clearance at Tullamarine airport she was interviewed by a member of Australian Border Force (Officer). The Applicant's biometrics showed that the Applicant had been denied a visa to Canada in 2018 and 2024. The Officer put the Applicant on notice of their intention to cancel her Visa under s 116(1)(d) of the Migration Act 1958 (Cth) (Migration Act). The Applicant was subsequently detained.
3. On 23 August 2025 the Applicant applied for a Bridging Visa E (Class WE) (Subclass 050) Visa (BVE). A Delegate of the Minister refused that application as the Applicant, having been refused immigration clearance, was a not an eligible non-citizen (BVE Decision). The Applicant applied on the same day to the Administrative Review Tribunal (Tribunal) for review of the BVE Decision. On 24 August 2025, the Applicant requested Ministerial intervention under ss 195A and 197AB of the Migration Act.

1. On 22 August 2025, after the notice of intention to cancel the visa was provided to the Applicant, the Officer cancelled the visa (Officer's Decision).
2. Relevantly, s 101 of the Migration Act provides that:

A non‑citizen must fill in or complete his or her application form in such a way that:

(a) all questions on it are answered; and

(b) no incorrect answers are given or provided.

1. Section 116(1)(d) of the Migration Act provides

(1) ... the Minister may cancel a visa if he or she is satisfied that:

...

d) its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared;

1. The Officer found that the Applicant had provided incorrect information, and as such, the Officer had the power to cancel the Applicants Visa. The Officer then considered factors weighing in favour of not exercising the power to cancel the Visa, namely that the Applicant:

(a) had a desire to visit family members in Australia and being refused entry would result in emotional distress to her and her family members;

(b) had not been in breach of her Visa conditions when in Australia; and

(c) would become an unlawful non-citizen, and would thus be refused immigration clearance, detained and removed from Australia with consequences for future visa applications that the Applicant may make.

1. The Officer also considered the following factors which were in favour of cancelling the visa:

(a) incorrect information had been provided by the Applicant;

(b) notwithstanding the Applicant's claims that she had told a migration agent that she had been refused entry into Canada, it was her responsibility to ensure the details of her visa application were correct; and

(c) the Applicant's stated intention to seek to live in Australia and her having been in Australia for a total of 248 days since the Visa Application had been issued, did not correspond to the short stay tourist visa.

1. The Officer weighed the factors above and was satisfied that they should exercise their power and cancel the visa.
2. The Applicant was notified of this decision on 22 August 2025 being the date the Officer's Decision was made.

1. Counsel for the Respondents helpfully directed my attention to the relevant provisions that enliven the Court's jurisdiction. Both the Officer's Decision and the BVE Decision are reviewable in this Court. As both of those decisions were made in circumstances where the Applicant had entered Australia but had not been immigration cleared, neither of the decisions are a reviewable migration decision; s 338(3) Migration Act. As such, the Administrative Review Tribunal does not have jurisdiction to hear a merits review of the decisions; ss 347(1) and 476(4) Migration Act. This Court's jurisdiction is thus enlivened under s 476(1) of the Migration Act.
2. The Application also appears to pre-emptively challenge possible future decisions associated with the request for ministerial intervention. The Applicant's grounds includes the following preamble:

Any consequential decision to refuse to consider or to not refer Ministerial requests for residence determination s 197 AB or visa grant s 195A insofar as relevant to removal steps while merits review is on foot.

1. To the extent that the Applicant seeks judicial review about a decision not to refer a ministerial request to the Minister, or for the Minister to exercise ministerial discretion, the Court has no jurisdiction. These decisions are not Migration Decisions as defined under the Migration Act; s 5 (definition of 'Migration Decision'). Rather, they are privative clause decisions or purported privative clause decisions under s 474(7) of the Migration Act, being "a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under" ss 195A and 197AB. Such decision are final, must not be reviewed and are not subject to constitutional writs, injunction or declaration or certiorari in any court; s 474(1).

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 make 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]

Serious Issue to be tried - Grounds of Judicial Review

1. The Applicant's Substantive Application identifies eight grounds of judicial review with respect to the "decision dated 22 August 2025 to cancel Subclass 600 at immigration clearance under s 116(1)(d) Subdivision C s101". The Applicant also seeks judicial review of "any consequential decision to refuse to consider or not the refer Ministerial requests". The Applicant also raises a further two grounds of judicial review in the outline of submission. These grounds of review are in relation to the Applicant's Bridging E (Class WE) General (subclass 050) visa (BVE).
2. The Applicant's written submissions fail to engage with the well established principles associated with the granting of the interlocutory relief being sought. I asked Mr Singh, the Applicant's representative, whether his client pressed all the grounds of review for the purpose of the interlocutory hearing. I was informed that all grounds were indeed pressed. In light of the deficiencies in written submissions, I gave Mr Singh the opportunity to make submissions on whether there was a serious issue to be tried and why the balance of convenience would be served by the granting of the interlocutory relief.

1. At the hearing Mr Singh submitted that these grounds were related as they both deal with the procedural fairness afforded to the Applicant by the Officer. It was alleged that an opportunity was not offered to the Applicant to address an adverse inference that the Applicant deliberately provided an incorrect answer on her visa application. With respect to this submission I was directed to the Application for a Short Stay visa annexed to Mr Singh's affidavit and in particular the email address of the Agent who prepared the Visa Application on the Applicant's behalf. It was further submitted that the error was material as the agent could have provided further information.
2. The submission of itself is perplexing and misconceived. There was no finding that the Applicant deliberately provided an incorrect answer. The finding was that it was the Applicant's responsibility to ensure that the information in the Visa application was correct.
3. Further as submitted by the Minister, procedural fairness was accorded to the Applicant by the Respondent. The Applicant was interviewed. The Applicant was then provided with a notice of intention to cancel in accordance with s 119 of the Migration Act. To the extent that the Applicant submits that cooperation with Australian Border Force ought to have been taken into account, that simply goes to impermissible merits review.
4. The applicant has not established that there is a serious issue to be tried with respect to Grounds 1 and 4.

1. Mr Singh submitted that there was both a failure to consider mandatory relevant considerations and consideration of an irrelevant consideration. With regards to a failure to consider mandatory considerations, Mr Singh suggested that the Officer took the presence of incorrect information under s 101 as a 'foregone basis for cancellation'. This characterisation is not made out on the facts. The Officer addresses in the decision record whether a ground for cancellation existed and then once having determined that such a ground existed turned to consider the discretionary factors for and against cancellation. The Officer ultimately determined that they ought to exercise their statutory power to cancel.
2. Mr Singh further submitted that the Officer's Decision:

does not reveal a lawful calibration commensurate with hardship, compliance, and immediate acknowledgement which the applicant has exhibited the first instance when she was at the interview.

1. It is difficult to understand this submission as anything but inviting assessment of impermissible merits review. Hardship, compliance, and acknowledgement of wrongdoing were considered by the Officer in their decision making. To challenge the weight of these factors would be impermissible in judicial review.
2. The irrelevant consideration submitted by Mr Singh was that the Officer stated the tourist visa was inappropriate given the length the Applicant's cumulative stay in Australia. The Minister submitted that the Officer did place less weight on the intended purpose of the visa namely a short stay tourist visa in light of the Applicant's concession that she wished to live in Australia and her cumulative stay. The Applicant's submission that this consideration was irrelevant was little more than an assertion by Mr Singh which is not sufficient to make out a ground of irrationality or illogicality. The reasoning given by the Officer was consistent with s 116 of the Migration Act and the Act as a whole.
3. No serious issue to be tried has been establish by the Applicant with respect to Ground 2.

1. The Applicant submitted that the conclusion arrived at by the Officer was legally unreasonable amounting to a jurisdictional error. Mr Singh submitted orally that the availability of 'community-based management', along with what he described as 'mitigating circumstances', being the factors recognised by the Officer, meant that the conclusion arrived at to cancel the visa was legally unreasonable.
2. The primary basis for this ground appears to be centred on the fact that the Officer made some findings in favour of the Applicant in the Decision and that there were alternatives available other than cancellation of the Applicant's visa at the airport before she cleared immigration.
3. In my view this ground constitutes a disagreement with the decision of the Officer. This disagreement, no matter how strenuous, does not constitute legal unreasonableness: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611. The decision of the Officer is intelligibly justifiable.
4. Just because there are some finding of facts in favour of the Applicant does not mean that it was not open to the Officer to find that the Applicant's visa should be cancelled before clearing immigration or that the Officer's Decisions to place greater weight on those considerations that favoured such a cancellation was unreasonable.
5. The Applicant has not made out a serious issue to be tried with respect to Ground 3

1. Ground 5 asserts that the Respondents have misconstrued the relationship between the removal duty placed on Australian Border Force with a merits review application. Mr Singh submitted that in the circumstance where a request for Ministerial intervention is "on foot", taking the Applicant into detention would be a jurisdictional error.
2. The Minister submitted that Ground 5 was based on a false premise that the Applicant had a right to merits review of the cancellation decision. I agree with that submission. The Applicant did not have a right to merits review as the Applicant was not an eligible non-citizen as contemplated by ss 347 and 338 of the Migration Act. The Administrative Review Tribunal did not have jurisdiction to entertain a merits review application with respect to the cancellation of the Applicant's visa.
3. The Minister also submitted that the Officer was required to consider the direct and immediate consequences of the Decision which included the Applicant's liability for detention and removal. It clear that the decision record at question 10 evidences such a consideration.
4. The mere fact that the Applicant has requested the Minister to intervene has no bearing on the Officer's discretionary exercise. In any event the exercise or failure to exercise Ministerial discretion is not a reviewable migration decision.
5. The Applicant cannot demonstrate a jurisdictional error in the Officer's Decision. Ground 5 does not disclose a serious issue to be tried.

1. It was submitted that the "post-cancellation conduct by officers" in refusing the BVE application and thereby prohibiting 'conditional community management' was a jurisdictional error.
2. This suffers from the same defect as that of ground 5. This an expression of dissatisfaction with immigration processes after the Officer's Decision has been made. It is not an error with respect to the Officer's Decision.
3. In oral submissions the Applicant indicated that this ground related to the determination that the application for a bridging visa was invalid.
4. By reason of the combined operation of sections 46(3), 46(4)(a) and s 72(1) of the Migration Act and Regulation 2.07(1)(c) and Schedule 1 item 1305(e) of the Migration Regulations 1994 (Cth) (Regulations), the Applicant is not an eligible non-citizen who has applied for a protection visa.
5. There is no jurisdictional error disclosed in Ground 6. The Applicant has not established that there is a serious issue to be tried with respect to this ground.

1. It is asserted by the Applicant that the Officer failed to comply with Ministerial directions and departmental policy guidelines with respect to the cancellation of the Applicant's visa. Mr Singh referred me to policy guidance that was not exhibited to his affidavit or tendered. Mr Singh submitted that this policy emphasises "welfare, mental health, family supports, cooperation and manageability of risk as central public interest factors" where consideration of community detention is applicable.
2. It is difficult to reconcile the submission with the Ground asserted.
3. The Minister relied upon a policy document exhibited to the affidavit of Mr Mak called "General Visa Application powers (ss 109, 116, 128, 134B and 140)". The considerations in the Officer's Decision record are the same as those set out in the policy document. In any event the Officer is not bound by this policy and any failure to comply would not amount to a jurisdictional error: El Ess v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 at [45].
4. The Applicant is unable to establish a serious issue to be tried with respect to Ground 7.

1. The final ground in the Application pressed by the Applicant was that the Officer failed to consider Australia's international obligations under the International Covenant on Economic, Social and Cultural Rights (ICCPR). Mr Singh orally submitted that the power to cancel a tourist visa, and subsequently hold someone in immigration detention, ought to be interpreted in some way by reference to article 9 of the ICCPR.
2. I was referred to the matter of Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (Teoh) as providing support for the proposition that article 9 of the ICCPR "requires detention to be necessary, reasonable and proportionate, not arbitrary, [which] guides interpretations of detention powers to avoid breaches". That case does not deal with the ICCPR (but rather the Convention on the Rights of the Child), nor does it assess the legality of immigration detention. At its highest, it might be taken as standing for the proposition that, where ambiguous, a statute should be interpreted in light of Australia's international obligations; Teoh at 287 (Mason CJ and Deane J).
3. Mr Singh did not explain how this evinces a jurisdictional error in the Officer's Decision other than point to ss 195A and 197AB of the Migration Act regarding the exercise of ministerial discretion.
4. I agree with the Ministers submission that this ground cannot be said to have any merit. The Applicant was unable to point to some domestic law where article 9 has been enacted or otherwise given effect.
5. The Applicant cannot point to a jurisdictional error with respect to Ground 8. The Applicant has been unable to establish a serious issue to be tried with respect to this ground.

1. I directed Mr Singh to paragraph [40] of the Minister's written submission that the Court did not have jurisdiction with respect to a decision to refer, not refer requests for ministerial intervention or personal decisions of the Minister not to exercise or consider the exercise of ministerial discretion. I asked Mr Singh's what the Applicant's position was on the Court's jurisdiction. His only submission was that he was unable to assist the Court.
2. It is clear that the Court has no jurisdiction to deal with the matters associated with the exercise of Ministerial discretion. The Applicant is unable to show a serious issue to be tried on any grounds which challenge the issues associated with the exercise of Ministerial discretion referred to by the Applicant.

1. The Applicant in both written and oral submissions asserts that in relation to the determination of the BVE application the Delegate did not apply s 72(1)(b) of the Act and reg 2.20(11) of the Regulations and as such was in error finding that the Applicant was not an eligible non-citizen as reg 2.20 applied to the Applicant.
2. It was further asserted that the Applicant was denied procedural fairness because she was not provided with a s 57 invitation to comment on her eligibility before the decision regarding the invalidity of the BVE Application was made.
3. Section 72(1) of the Act defines the term eligible non- citizen. The Applicant's reliance on regulation 2.20 (11) is misconceived. Regulation 2.20 (11) applies to a person who is a member of a family unit of a non-citizen to whom regulation 2.20 (10) applies. Regulation 2.20 (10) requires the Applicant to have applied for a protection visa and that visa application is not finally determined. The Applicant has not made an application for a protection visa nor is she a member of a family unit of a person who has applied for a protection visa.
4. The Applicant's reliance on a failure to comply with s 57 of the Act to underpin the ground of review is also misconceived. Section 57 applies to the consideration of a visa application. The applicant has not made a visa application in that she has not made an application for a protection visa.
5. The Minister submitted that even if it was argued that there was a common law basis requiring the Officer to put the Applicant on notice that their application is invalid such a failure is immaterial because the Applicant was not an eligible non-citizen. I accept this submission.
6. The Applicant has not established a prima facie case with respect to these grounds and as such there is no serious issue to be tried.

1. It was submitted by Mr Singh that the balance of convenience favours the Applicant. It was asserted that removal inflicts irreparable prejudice or harm on the Applicant and her Australian based family. It was submitted that: it would remove the Applicant from her Australian based support, exacerbate her isolation, preclude effective ART participation, there is no flight risk, no criminal history, strong ties to Australia, no public safety threat, and that removal would impose an exclusion period of 3 years together with removal debts.
2. Mr Singh made much of the Applicant's mental state resulting from the removal notice. There was no medical evidence before me regarding the Applicant's mental health.
3. The Applicant offered the "usual undertaking" should I be minded to grant the interlocutory relief sought but advised the court that the Applicant was of limited means.
4. The Minister's position was that the balance of convenience did not favour the grant of an interlocutory injunction for four reasons:

(a) Officers of the Commonwealth are under a duty to remove the Applicant as soon as reasonably practicable pursuant to s 198 of the Act, and that the Applicant needs a strong case to override parliament's intention that she ought be removed.

(b) The Applicant can be off-shore and still pursue her application for judicial review. Removal will not affect the substantive application and the Applicant would be at liberty to return if the visa was no longer cancelled.

(c) If the injunction were to be granted the Applicant would remain in detention. If the Applicant was removed she would be at liberty.

(d) The arguments regarding the BVE Application and the ART Application do not amount to, if valid, application for a substantive visa which would negate the removal obligation in s198(2) of the Act.

1. I am convinced that the balance of convenience does not favour the grant of an interlocutory injunction because: the Applicant is unable to establish that she has a strong case, in fact I am unable to make any findings on the grounds raised by the Applicant that give rise to a serious issue to be tried or a prima facie case. She has not established circumstance of exceptional quality: Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34; (2024) 302 FCR 159 at [127] - [128]. The evidence regarding the Applicant's mental health is non-existent. The highest this evidence gets is a Detainee Medical Request Form exhibited to Mr Singh's affidavit.
2. The effect on the Applicant's liberty, should I grant the injunction, is of concern. The Applicant may remain in detention for some months while she waits for the substantive application to be listed for hearing whereas she will be at full liberty if she is removed and will not accrue further debt to the Commonwealth. There is nothing before me that indicates that the Applicant cannot provide instructions or give evidence from India with respect to the substantive proceeding.
3. Finally, the Applicant is unable to offer an enforceable undertaking as to damages where she is impecunious and reliant on her Australian based family to underwrite her undertaking.
4. There is no material before me on the balance of convenience that is of such weight, particularly in light of my findings regarding there being no serious issue to be tried on any of the grounds raised, which would result in me granting an interlocutory injunction in favour of the Applicant. The balance of convenience favours the Respondent.
5. The Application for interlocutory injunction must be dismissed.

1. The Applicant has not established a prima facie case that would warrant the granting of an injunction. I have determined that the Interlocutory Application seeking an injunction restraining the Minister from removing the Applicant from Australia be dismissed.
2. The Minister submitted that costs should be cost in the cause. I am of the view that this is an appropriate order in the circumstances.
3. Orders were made accordingly on 6 October 2025.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the 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].