Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1419

1. This matter was heard on 28 August 2025 for an urgent interlocutory hearing before me.
2. The Applicant relied upon the following documents:

(a) The Application filed 28 August 2025; and

(b) The Affidavit of Michael Wong, sworn on 27 August 2025, filed 28 August 2025;

(c) The Further Affidavit of Michael Wong, sworn on 27 August 2025, filed 28 August 2025, tendered as Exhibit 1A on 28 August 2025 (First Wong Affidavit);

(d) Outline of Submissions dated 28 August 2025; and

(e) Affidavit of Michael Wong, unsworn and tendered as Exhibit 2A on 28 August 2025.

1. The Minister relied upon the following documents:

(a) Affidavit of Tess Price, affirmed and tendered as Exhibit 1R on 28 August 2025 (Price Affidavit); and

(b) Outline of Submissions dated 28 August 2025.

1. The Applicant seeks the following interlocutory order (Interlocutory Order):
   1. An interlocutory injunction restraining the first and second respondents, by themselves, their officers, delegates, employees, agents or otherwise howsoever, from removing, deporting, or taking any steps to remove or deport the applicant from Australia pursuant to section 198 of the Migration Act 1958 (Cth) or any other provision until further order of the Court or until the final determination of the substantive application for judicial review in these proceedings, whichever occurs first.

1. The Application contains the following ground of review (Ground of Review):
   1. The delegate erred in finding that the applicant's visa application was invalid on the claimed basis that it was lodged outside the time limit specified in s 195(1) of the Act, because the time limit in s 195(1) had not yet begun to run. (Ground 1).

Particulars

1. The end of the time after which the application would be invalid, pursuant to s 195(1), begins to run only after s 194 is complied with.

2. There has not been compliance with s 194.

3. Insofar as the respondent may allege that there was compliance with s 194 on 21 December 20223 in an interview with an officer identified as "I.Kaya" in which that officer provided to the applicant a :Form 1423 - Very Important Notice" (the form), the provision of that form did not amount to compliance with s 194, including in circumstances where:

   1. The person who detained the applicant under s 189 was someone other than "I.Kaya", whereas under s 194 the applicant needed to have been made aware of matters by the same person who "detains a person under section 189";

   2. "I.Kaya" provided the form to the applicant before the applicant was in immigration detention, whereas under s 194 the applicant needed to have been made aware of matters "after" an officer detains a person under s 189;

   3. Regardless of the matters in (a) and (b), the relevant offer (whoever that may be) did not "ensure that" the applicant was made aware of the provision of ss 195 and 196, as s 194 required, because:

      1. The purpose of the interview, as understood by the applicant, was to decide whether to grant the applicant a bridging visa E, and not anything to do with prospective immigration detention;
      2. The applicant was under significant stress when being questioned during the interview with the officer, and felt compelled to sign the form despite not first having a chance to fully read and then understand its meaning, and otherwise not actually understanding its meaning;
      3. The officer did not provide him a copy of the full "Form 1423" at any time in or after the interview;
      4. The applicant was not offered the opportunity to consult a lawyer during the interview;
      5. The applicant was told by the officer, wrongly, that his then other pending visa application meant that the time limit in s 195(1) did not apply;
      6. The officer otherwise did not ensure that the applicant was made aware of the provisions of ss 195 and 196.

   4. Further particulars may be provided after discovery and/or interrogatories.

(Words in bold added, otherwise as written)

1. The Applicant submits that he has a prima facie case for the substantive relief sought.
2. The Applicant submits that the validity of a visa application is an objective question of jurisdictional fact, which the Court should determine for itself.[21]
3. Relevantly, the validity of the Applicant's application is governed by ss 47 and 195 of the Migration Act. The Applicant submits the substantive trial of this matter will need to determine whether the requirements of s 194 of the Migration Act were met. The obligation in s 194 is to "ensure" that the detainee is made aware of those matters contained in ss 195 and 196 of the Migration Act.
4. On the evidence, the Applicant submits that the VIN was provided to him. However, the precise content of the document given to the Applicant is not presently known as the Applicant was unable to keep or view the documents for a prolonged period. The Applicant submits that he was not given an adequate opportunity to read the documents nor a purported acknowledgment of receipt of the document he was directed to sign. The Applicant further alleges that he did not understand what was presented to him and was under the assumption the interview was regarding the potential grant of a bridging visa E.
5. The First Wong Affidavit also raises other factual matters relating to the compliance of s 194 of the Migration Act. Whether the VIN was provided to the Applicant whilst he was in Immigration Detention as opposed to criminal custody. The Applicant submits that the obligation in s 194 of the Migration Act is to ensure awareness "after" an officer detains a person in Immigration Detention, not criminal detention. Another uncertainty the Applicant submits is whether the person who detained him under s 189 is the same person who purported to make him aware of ss 195 and 196 of the Migration Act. The Applicant alleges that he may have been misled.
6. The Applicant submits that if any of the above submissions are established at trial, it would mean that the time limit by which a visa application had to be lodged pursuant to s 195 had not yet expired.

1. The Applicant submits that it should be uncontentious that the balance of convenience favours the grant of an injunction. If the Applicant were to be removed from Australia, but successful at trial, he would be further separated from his partner who resides in Australia.
2. The Applicant alleges there would be strain on the relationship and he would have no other visa to return to Australia while his Visa application remains pending.
3. The Applicant notes that there is no real prejudice to the Minister should the injunction be granted. On the contrary, the Applicant notes he can be easily removed if he is unsuccessful.

1. The Minister submits that the Application does not contain a single ground of review which establishes that the visa application was valid, as the time period specified in s 15(1)(b) of the Migration Act never commenced due to a defective s 194 notification.
2. The Applicant raised three arguments in support that the s 194 notification was defective. The Minister submits that none of these arguments raise a serious question to be tried.

Argument 1: The officer who detained the applicant was not the officer who gave him the VIN

1. The Minister submits that s 194 of the Migration Act does not require the detaining officer and the person who notifies the detainee of the matters set out in the section be one and the same. Rather, it simply requires that the detaining officer "ensure that the detainee is made aware of" the matters described in that section.
2. The Minister further submits that in any event, it is clear from both the signed acknowledgment of the VIN and the record of the LPI that the ABF Officer, "I Kaya" detained the Applicant as well as ensured that the Applicant was made aware of the provisions of ss 195 and 196 of the Migration Act.

Argument 2: The VIN was provided before the applicant was taken into immigration detention

1. The Minister submits that the Applicant's second argument has no factual basis.
2. The Minister submits that the Applicant was detained under the Migration Act at 6:25pm on 21 December 2023 and it is clear from the LPI that the Applicant was given the VIN between 6:52pm to 6:59pm.

Argument 3: The detaining officer did not ensure that the applicant understood the provisions of ss 195 and 196

1. The Minister submits that the Applicant's evidence regarding the LPI is given on instruction via his solicitor. Such evidence in not inadmissible but should be given little weight in circumstances where no reasonable explanation has been provided for why this course was taken.
2. The Minister further submits that it is clear from the content of the record of the LPI that the purpose of the interview was to discuss matters relevant to the Applicant's detention at the conclusion of his criminal custody, which does not give rise to a serious question to be tried.
3. Further, while it is understandable that the Applicant was stressed, the Minister submits that there is no evidence before the Court to indicate that his mental state was so significantly impaired that the notice given by the ABF Officer was ineffective.
4. The Minister notes that it cannot be alleged that the Applicant was not provided with a full copy of the VIN. The Minister points to the Acknowledgement that the Applicant signed. Further, s 194 does not require that the Applicant be allowed to retain the VIN, it only requires the ABF Officer to ensure that he was made aware of the provision of ss 195 and 196 of the Migration Act.

The balance of convenience does not favour the grant of an injunction

1. The Minister submits that the balance of convenience does not favour the grant of an interlocutory injunction for four reasons, these being:

(a) The grant of an interlocutory injunction would restrain performance by officers of the Commonwealth of the duty to remove the Applicant from Australia as soon as reasonably practicable pursuant to s 198 of the Migration Act. Doing so may frustrate the intention of Parliament that unlawful non-citizens whose visa application have been finally determined be removed;[22]

(b) The Applicant does not need to be in Australia to pursue his application and there is no suggestion that his capacity to instruct his legal representatives will be hindered by his removal. The Applicant's removal will not render his substantive application inutile. The Applicant can pursue his visa application from India as both subclass 801 and 820 visas can be granted offshore;[23]

(c) The effect of the Court granting an injunction will not result in the Applicant's release from Immigration Detention. The Minister submits that if an injunction were granted, the Applicant would remain in Immigration Detention until the substantive application is determined; and

(d) The Applicant has failed to proffer the usual undertakings as to damages.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[24]
3. Section 476(2)(a) of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to certain classes of decisions including a "primary decision". The decision under review in the present case is the decision of the Delegate that the Applicant's visa application was invalid on the basis that it was lodged outside the time limit specified in s 195(1) of the Migration Act. That decision is not a "primary decision" and is not otherwise part of the class of decisions for which the Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction.

1. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Migration Regulations 1994 (Cth) (Regulations)) has been satisfied, and to refuse to grant the visa, if not satisfied.
2. The Partner visa (Temporary) (Subclass 820) allows the de facto partner or spouse of an Australian citizen, Australian permanent resident or eligible New Zealand citizen live in Australia temporarily. The grant of this visa is the first step towards a permanent Partner visa (Subclass 801).
3. The criteria that the Applicant was required to satisfy for the grant of a Partner Subclass 820 visa are set out in cl 820.1 to 820.6 to Schedule 2 of the Regulations.

Partner visa (Permanent) (Class BS) Subclass 801 visa

1. The Partner visa (Permanent) (Class BS) (Subclass 801) visa allows the de facto partner or spouse of an Australian citizen, Australian permanent resident or eligible New Zealand citizen live in Australia permanently. It is usually only for people who currently hold a temporary Partner visa (Subclass 820).
2. The criteria that the Applicant was required to satisfy for the grant of a Partner (Subclass 801) visa are set out in cl 801.1 to 801.6 in Schedule 2 of the Regulations.

1. Section 140 of the FCFCOA Act empowers the court to "make orders of such kinds, including interlocutory orders, as the Court considers appropriate". This includes the power which courts of equity traditionally exercise to grant injunctions to preserve the status quo pending the determination of a claim for a legal remedy.[25]
2. Before granting an interlocutory injunction, the court should be satisfied that:[26]

(a) there is a prima facie case for the final relief sought by the applicant; and

(b) that the balance of convenience favours the granting of the injunction (including consideration of whether "irreparable harm" will be suffered by the applicant that cannot be remedies by damages if an injunction is not granted).

1. These questions are not asked in isolation from one another and are somewhat "intertwined". For example, the apparent strength of the parties' cases is often an important consideration to be weighed in the balance.[27]
2. The question of whether or not to grant an injunction inevitably turns on the facts before the Court in the particular circumstances of the case.[28]
3. The court has power to grant an injunction to preserve the subject matter of the substantive dispute which in this case would be to restrain the respondents from removing the applicant from Australia pending final determination.
4. In Minister for Immigration and Multicultural Affairs v MZAPC,[29] Gageler CJ, Gordon, Gleeson and Jagot JJ stated:[30]

The principle apposite to the present case is the power of a court to protect the integrity of its own processes by ensuring its capacity to effectively exercise its jurisdiction invoked in a proceeding pending before it. Applied to the present case, the power of the Federal Court to protect the integrity of its own processes in a proceeding pending before it of the kind brought by the respondent is not confined to an interlocutory injunction preventing the removal of an unlawful non‑citizen from Australia only where the final relief sought is an order that the person cannot be lawfully removed from Australia. As an incident of its statutory power to make such interlocutory orders as are judicially considered to be appropriate, the power of the Federal Court to "protect the integrity" of the processes before it "once set in motion" includes the vindication of its own authority to ensure it can determine the proceeding before it and grant final relief of utility.

Tait v The Queen is directly on point. In Tait, there were two proceedings in respect of a prisoner who had been convicted and sentenced to death. The first proceeding, between the petitioner, D H F Scott, and the Chief Secretary of Victoria, involved a request for a direction that an inquiry into the prisoner's sanity be held. Counsel for the petitioner argued that, if an inquiry were ordered and the prisoner were found as a result of the inquiry to be insane, his execution would be contrary to the common law as applicable in Victoria. The second proceeding, between the prisoner and the Crown in right of Victoria, involved an application for the respite of execution of the sentence of death to which the prisoner had been subjected. Both the request and the application had been rejected and were subject to applications for special leave to appeal to this Court. Counsel in each proceeding brought a preliminary application for an adjournment of the hearing of the application for special leave to appeal and for a stay of the execution of the prisoner. The preliminary applications were heard together. After Dixon CJ observed during argument that he had "never had any doubt that the incidental powers of the Court can preserve any subject matter, human or not, pending a decision", the Court ordered a stay of execution of the prisoner to enable the two applications for special leave to appeal and any appeals to be determined "entirely so that the authority of this Court may be maintained". By this, the Court was vindicating its authority to determine each of the two proceedings before it and acting to preserve the utility of so doing, including by preserving the utility of the direction for an inquiry sought in the first proceeding. The formal order of the Court was entered in both proceedings, recorded that it was made upon applications made to the Court "severally" by counsel on behalf of the petitioner and counsel on behalf of the prisoner, and was expressed in terms that "the execution of the ... prisoner ... be not carried out but be stayed pending the disposal of the aforesaid applications to this Court for special leave to appeal and of any appeal or appeals to this Court in consequence of such applications". The submission for the appellants and the Attorney-General in the present case that the interlocutory order in Tait was referable solely to the second proceeding is wrong.

1. In Films Rover International Ltd v Cannon Film Sales Ltd,[31]Hoffmann J stated:[32]

I think it is important in this area to distinguish between fundamental principles and what are sometimes described as 'guidelines', ie useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the 'wrong' decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong' in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.

1. On the question of balance of convenience, the court should give weight to the public interest involved in the due administration of the Act, particularly where the Migration Act has imposed an obligation on departmental officers to remove a party from Australia.[33]
2. In CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[34] (CPK20) Mortimer J[35] stated:

In public law, evaluating the "risk of injustice" to the repository of a public power may involve a different kind of evaluation. The risk of injustice may, in such circumstances, relate to the frustration of legislative intention within a legislative scheme, or the interruption of the course otherwise contemplated by law. Nevertheless, consideration of which course has the lower risk of injustice may still provide useful guidance to the Court in assessing whether it is appropriate to grant interlocutory relief.

1. In SZSPI v Minister for Immigration & Border Protection,[36] the Full Court stated:

The intersection of the exercise of judicial power in respect of an application pending before the Court, and the exercise of executive power under the Act may, in many cases, be both of importance and delicate. Any policy or practice of the Department that has the effect of impeding or prejudicing persons seeking orders from the Court in respect of statutory or other rights to remain in this country would raise deep questions of a Constitutional character, even if such a policy or practice appeared to be founded on a reading of a statutory provision. We leave to one side the law of contempt. To avoid such difficult questions and any question of contempt, as a minimum, persons who have an application before the Court should be given a reasonable time and relevant facilities to seek advice and make any relevant application for injunctive relief. So much is recognised by the Act in s 256. If a reasonable opportunity is given to the person in detention for the making of such application, it may, in any given case, not be inappropriate for the removal of that person to occur. The individual circumstances of a case would need to be examined. It is to be recalled that, in many cases, a person in immigration detention may not speak English, at all, or with any great facility, and may well be a stranger to the Australian legal system.

1. The Federal Court Migration Practice Note - Removal from Australia of Immigration Detainees who have Proceedings before the Court (MIG-2), which reflects principles which were set out in SZSPI v Minister for Immigration and Border Protection,[37] provides, relevantly:

What the Minister must do

• 3.1 The Court expects the Minister to conduct matters before the Court involving detainees in a way that:
  1. facilitates the fair administration of justice including by co-operating in the finalisation of proceedings in a cost effective and efficient manner while detainees remain in Australia, including detainees who may either be self-represented or have pro bono representation;
  2. facilitates the fair administration of justice where detainees are voluntarily removed from Australia, but seek to continue their proceedings from outside Australia, by ensuring that appropriate contact details for detainees are available to the parties and the Court and that detainees have been properly informed about the contents of this Practice Note;
  3. ensures timely and appropriate communication between the Minister's legal representatives and those within the Commonwealth executive and relevant Departments who are responsible for any proposed removals from Australia of detainees covered by this Practice Note; and
  4. protects all officers and employees involved in the administration of the system of immigration detention under the Migration Act from possible (individual) charges of contempt of Court.
• 3.2 In the case of involuntary removal, the Court expects that, before any removal occurs, a full, reasonable and practicable opportunity is given by the Minister to the person in detention for the making of an application to prevent their removal. What constitutes a reasonable and practicable opportunity depends on the particular case. Affording a reasonable and practicable opportunity would generally include informing a detainee who is not aware of the right to make an application to prevent their removal of that right. Affording a reasonable and practicable opportunity will always require giving the detainee a reasonable time and appropriate facilities to seek advice if the detainee wishes and to make any application for injunctive relief.

1. The principles have been held to apply in this court.[38]
2. Whether an undertaking as to damages is required is in the discretion of the court.

1. The Applicant's Application for an interlocutory injunction to restrain his removal from Australia requires the Court to consider two matters:

(a) First, whether there is a prima facie case for the final relief sought by the Applicant; and

(b) Second, whether the balance of convenience favours the granting of the injunction (including by reference to the question of "irreparable harm").

1. They are "related enquiries" and not considered in isolation from one another.

1. The Applicant contends that there is a prima facie case that:

"The delegate erred in finding that the applicant's visa application was invalid on the claimed basis that it was lodged outside the time limit specified in s 195(1) of the Act, because the time limit in s 195(1) had not yet begun to run."

1. The Applicant contends that the time period specified in s 195(1)(b) of the Migration Act never commenced due to a defective s 194 notification.
2. The question of validity turns on three provisions: ss 194, 195 and 196 of the Migration Act.
3. Section 194 of the Migration Act provides, relevantly:

Detainee to be told of consequences of detention

As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:

1. the provisions of sections 195 and 196; and.

1. Section 195 of the Migration Act provides:

Detainee may apply for visa

1. A detainee may apply for a visa:
   1. within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
   2. if he or she informs an officer in writing within those 2 working days of his or her intention to so apply--within the next 5 working days after those 2 working days.
2. A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.

1. Section 196 of the Migration Act contains provisions concerning the duration of detention.
2. A central question is whether as soon as reasonably practicable after the Applicant was detained under s 189 of the Migration Act, the officer complied with the obligation to "ensure that" the Applicant was "made aware of... the provisions of sections 195 and 196".
3. The Minister contends that the officer complied with s 194 of the Migration Act by the provision of the VIN. The VIN provided amongst other things:

Visa application time limits (Section 195 of the Act)

Please note that in most cases there are time limits on applying for visas (other than for bridging visas or protection visas) while you are in detention. In accordance with section 195 of the Act you may apply for a visa within 2 working days after the day on which you receive this notice, or if you inform an officer in writing within those 2 working days of your intention to apply - within the next 5 working days after those 2 working days.

If you do not apply for a visa within the time allowed, you may not apply for a visa, other than a bridging visa or a protection visa, after that time.

1. The VIN also contained detailed on s 196 of the Migration Act under the heading "Length of your detention".
2. The Minister contends that the Applicant signed the Acknowledgment in these terms:

I [Navreet Singh] acknowledge that I have received Form 1423 - Very Importance Notice on [21 Dec 23], which made me aware of the provisions of ss 195 and 196 of the Migration Act 1958.

I, [Navreet], inform the Department that I intend to apply for a visa. I understand that, because I have informed the Department of my intention to apply for a visa within two (2) working days after I received Form 1423, I may apply for a visa within seven (7) working days after I received Form 1423.

I acknowledge that if I do not apply for a visa within seven (7) working days after the day on which I received Form 1423, I may not apply for a visa, other than a bridging visa or a protection visa, after that time.[39]

1. While the Acknowledgment and the VIN are separate exhibits, there is no reason to doubt on the evidence before me that the Acknowledgment is in respect of a VIN given to the Applicant. The Applicant's Solicitor has deposed on information and belief to the provision of "a piece of paper by the interviewer" which would correspond with the VIN.
2. The Applicant seeks to avoid the conclusion that officer complied with the obligation to "ensure that" the Applicant was "made aware of... the provisions of sections 195 and 196" by the provision of the VIN and Acknowledgment by the following evidence:
   1. The applicant was in prison on 21 December 2023 and due to be released that day. While at prison, he was visited by someone from the Department of Home Affairs who interviewed him in relation to an application for a bridging visa E.
   2. In the interview, which lasted for approximately 10 minutes, the interviewer asked the applicant various questions which the applicant understood as relating to the assessment of whether he should be granted a bridging visa E.
   3. Also in the interview, the applicant was provided a piece of paper by the interviewer, which he now knows as a "Form 1423", along with another document which he was told he had to sign and which purported to acknowledge that he had read and understood the "Form 1423". He was not given an opportunity to read the entirety of the two documents handed to him, before being told to sign. He signed as he was directed.
   4. He did not fully understand what he was being asked to sign. He felt under significant stress when being questioned during the interview.
   5. He was told by the interviewer that he would later be taken into immigration detention, but that the time limit for him to apply for another visa once in detention was not applicable to him because he already had (then) another pending visa application.
   6. After he signed the document, the officer took both documents away, and did not give him a copy to keep.
   7. After the interview, he was taken to an immigration detention centre. At no point after the interview in the prison was he given another "Form 1423".
3. While the Minister acknowledges that hearsay evidence is admissible at an interlocutory hearing,[40] he contends that little weight should be given to this evidence because it is given on information and belief. I am not prepared to discount the evidence in the manner contended for in circumstances where the Applicant is in Immigration Detention, and the Application has come on for hearing with some urgency owing to the arrangements made for his removal.
4. The Minister contends that:

(a) It is clear from the content of the record of the LPI that the purpose of the interview was to discuss matters relevant to the Applicant's detention at the conclusion of his criminal custody;

(b) While it is understandable that the Applicant may have been stressed by the circumstances that confronted him, there is no evidence before the Court to indicate that his mental state was so significantly impacted by any "stress" that the notice given to him by the ABF officer was ineffective;

(c) The claim that the Applicant was not provided with a full copy of the VIN is inconsistent with the Acknowledgement that he signed, which recorded his receipt of that form and his understanding of the extended time limit within which he could make a visa application. Further, even if the Applicant were not permitted to retain the VIN that was given to him (which is not conceded), s 194 does not require that he be allowed to retain the VIN; it only required that the ABF officer ensure that he be made aware of the provisions of ss 195 and 196, a matter he confirmed in the signed acknowledgement;

(d) Nothing in the Act requires that, in the course of interviewing a person for the purposes of determining whether he or she is an unlawful non-citizen or giving that person notice under s 194, he or she be afforded an opportunity to consult a lawyer;

(e) The Applicant's suggestion, conveyed via his solicitor, that he was told s 195(1) did not apply to him is entirely inconsistent with the content of the acknowledgement that he signed and the record of the LPI (which records no such advice having been provided to the applicant); and

(f) The claim that "the officer otherwise did not ensure that the applicant was made aware of the provisions of ss 195 and 196" is made without any meaningful particulars. It does not give rise to a serious question to be tried.

1. While there is some force in these contentions, I cannot escape the conclusion that the Applicant has made out a prima facie case. The Applicant's claim is that despite the provision of the VIN and Acknowledgment, he was told by the officer that "the time limit for him to apply for another visa once in detention was not applicable to him because he already had (then) another pending visa application." There is evidence concerning the other visa application that is contextually consistent with this claim,[41] namely that there were references to the other visa application during his interview, but does not directly corroborate it. I also note that the advice the Applicant says that he was given is not recorded in the "Field Operation Located Person Interview Record dated 21 December 2023".[42]
2. Taken at its highest, the Applicant's evidence (given via his solicitor) was that the content of the VIN and the Acknowledgment were effectively countermanded by what he was told. That case faces some significant obstacles at trial, not the least of which is the signed Acknowledgment. Nevertheless, this matter, on its own, raises a prima facie case as to compliance with s 194 of the Migration Act. I also note that in other contexts, particularly solicitors' certificates given in support of guarantees, there are examples of written acknowledgments that have not achieved their stated purpose.[43]
3. It is arguable that if such evidence were accepted then the officer would not have "ensured that" the Applicant was "made aware" of the provisions of s 195 of the Migration Act; noting that the content of the relevant obligation under s 194 is not, to my knowledge, the subject of judicial consideration and not an entirely straightforward question, either as a matter of statutory construction, or as to its application to the facts alleged.
4. On the evidence before me, I consider that the Applicant has made out a prima facie case, but not a particularly strong having regard to the content of the Acknowledgment signed by him.

1. The Applicant contends that the balance of convenience favours the grant of an injunction to prevent the Applicant from being removed from Australia pending his trial.
2. The Applicant contends that removed from Australia, he will suffer prejudice in the form of further separation from his partner who is the sponsor of his Visa. It was submitted that his relationship with his partner would be harder to maintain if he were overseas, a circumstance that might persist for the significant period of time it is likely to take to determine his Visa application. This prejudice would undermine a purpose of the Partner visa application, namely the promotion of genuine partner relationships between Australian citizens and non-citizens.
3. Against this, is the fact that the Applicant is in detention. If an injunction is granted, the Applicant will remain in detention pending the resolution of his Visa application. This presents an ongoing difficulty for him in the maintenance of his relationship with his partner. However, I do accept the Applicant's contention that removal would have a more deleterious effect on his relationship, than remaining in Australia in detention, where his partner is able to visit him.
4. The Minister contends that "the court must balance the applicant remaining in Australia, with his liberty restricted, against his return to India, where no such restriction will occur". However, in considering the balance of convenience I have some regard to the Applicant's choice in making this application - to value proximity with detention over distance and freedom.
5. It is also true that the Applicant can pursue his application for judicial review from India and that removal will not render his substantive application inutile. On the other hand, resolution of some of the central factual questions on judicial review is likely to involve cross-examination of the Applicant, a matter that is best done in person.
6. Another matter that I must consider is the public interest involved in the due administration of the Migration Act, particularly where the Act has imposed an obligation on departmental officers to remove a party from Australia.[44] The ongoing cost of detention that would be imposed by the grant of an injunction is another matter that I also consider, which is not answered by reference to the Minister's power to release the Applicant into the community. Theoretically, that cost might be recovered under the undertaking as to damages, but the immediate cost and risk to revenue cannot be ignored.
7. Finally, one matter that mitigates some of the matters adverse to the grant of the injunction that are set out above is the circumstance that I am able to accommodate the hearing of the substantive application in late September 2025. I have offered the parties an earlier date, but counsel for both expressed reservation as to if the matter would be ready for trial.
8. Having regard to all the matters set out above, and notwithstanding the apparent weakness of the Applicant's prima facie case (based on the limited untested evidence before me considered in this interlocutory context), I consider that the balance of convenience favours the grant of an injunction with slight modification to the terms proposed by the Applicant. Even taking into account the public interest in the due administration of the Migration Act it appears to me that the course which appears to carry the lower risk of injustice if it should turn out to have been 'wrong' is to grant an injunction.
9. The Applicant has proffered the "usual undertaking as to damages" and I would require that the undertaking be given as the price for the injunction.
10. I will ask the parties to confirm as to the making of trial directions that will facilitate a trial in late September 2025. I would expect that the Applicant having obtained an injunction will act with all due expedition to make the matter ready for trial.

1. In the premises, I am satisfied that it is appropriate in the interests of justice to grant an injunction pending the hearing and determination of this matter.
2. Contrary to the Applicant's contentions, I see nothing in the conduct of the Minister to warrant a costs order other than costs in the cause.

I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 28 August 2025, Order 1.

[2] Minister's Submissions dated 28 August 2025.

[3] Minister's Submissions dated 28 August 2025.

[4] Minister's Submissions dated 28 August 2025.

[5] Minister's Submissions dated 28 August 2025, Further Affidavit of Michael Wong, sworn on 27 August 2025.

[6] Page 10, Annexure TP-2, Affidavit of Tess Price, affirmed on 28 August 2025.

[7] Further Affidavit of Michael Wong, sworn on 27 August 2025.

[8] Page 14, Annexure TP-2, Affidavit of Tess Price, affirmed on 28 August 2025.

[9] Page 28, 31-33, 37, Annexure TP-2, Annexure TP-3, Annexure TP-4, Affidavit of Tess Price, affirmed on 28 August 2025.

[10] Further Affidavit of Michael Wong, sworn on 27 August 2025.

[11] Page 37, Annexure TP-4, Affidavit of Tess Price, affirmed on 28 August 2025.

[12] Page 37, Annexure TP-4, Affidavit of Tess Price, affirmed on 28 August 2025.

[13] Further Affidavit of Michael Wong, sworn on 27 August 2025.

[14] Further Affidavit of Michael Wong, sworn on 27 August 2025.

[15] Further Affidavit of Michael Wong, sworn on 27 August 2025.

[16] Page 41, Annexure TP-5, Affidavit of Tess Price, affirmed on 28 August 2025.

[17] Minister's Submissions dated 28 August 2025.

[18] Annexure MW-1, Further Affidavit of Michael Wong, sworn on 27 August 2025.

[19] Further Affidavit of Michael Wong, sworn on 27 August 2025.

[20] Further Affidavit of Michael Wong, sworn on 27 August 2025.

[21] Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47 at [27].

[22] CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [15].

[23] Migration Regulations 1994 (Cth) Sch 2 cls 801.411, 820.411.

[24] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

[25] Calava v Minister for Immigration [2015] FCCA 2525 per Judge Manousaridis at [8]

[26] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57.

[27] Samsung Electronics Co. Limited v Apple Inc. (2011) 217 FCR 238 at [67].

[28] SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279 per Allsop CJ, Mansfield and Besanko JJ and FEL19 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 331 per Judge Barnes at [13].

[29] [2025] HCA 5; 99 ALJR 486.

[31] [1986] 3 All ER 772. Cited with approval by Gummow J in Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; 82 ALR 499 at 502 and Mortimer J in CPK20.

[33] ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [12].

[34] [2020] FCA 825 (12 June 2020).

[36] [2014] FCAFC 140; (2014) 233 FCR 279 per Allsop CJ, Mansfield and Besanko JJ.

[37] [2014] FCAFC 140; (2014) 233 FCR 279 per Allsop CJ, Mansfield and Besanko JJ.

[38] AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 192 at [37].

[39] Page 37, Annexure TP-4, Affidavit of Tess Price, affirmed on 28 August 2025.

[40] Section 75 of the Evidence Act 1995 (Cth).

[41] Affidavit of Tess Price sworn 28 August 2025 at pp 24, 27 and 49.

[42] Affidavit of Tess Price sworn 28 August 2025 at pp 9 to 29.

[43] E.g. Webster Investments Pty Ltd v Anderson and Webster Investments Pty Ltd v North Star Developments Pty Ltd. [2016] VSC 620; (2016) 52 VR 610.

[44] ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [12].