BKN25 v Commonwealth of Australia - Migration Visa Cancellation

Original Word Document (106.4 KB) Federal Court of Australia

BKN25 v Commonwealth of Australia [2026] FCA 350

| File number: | NSD 145 of 2025 |
| | |
| Judgment of: | KENNETT J |
| | |
| Date of judgment: | 25 March 2026 |
| | |
| Catchwords: | MIGRATION – application for interlocutory injunction – where the applicant is a national of Afghanistan whose Safe Haven Enterprise Visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) – where the applicant is currently in immigration detention and is scheduled to be removed on 27 March 2026 – whether an injunction should be granted to restrain the applicant’s removal |
| | |
| Legislation: | Migration Act 1958 (Cth) ss 76AAA, 189, 198(1) and (2B), 501(3A), (6)(a) and (7)(a), (b), (c), 501CA(3)

Migration Regulations 2004 (Cth) Sch 1, item 1127AA(3)(b), Sch 2, cl 790.511 |
| | |
| Cases cited: | BHRR v Minister for Immigration and Citizenship [2025] FCA 1369

BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44; 99 ALJR 75

Capic v Ford Motor Company of Australia Ltd [2020] FCA 486

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

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772

Mastipour v Secretary, Department of Immigration and Multicultural & Indigenous Affairs [2004] FCA 1571; 140 FCR 137

Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112

Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; 99 ALJR 486

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137

Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189

Tait v The Queen (1962) 108 CLR 620 |
| | |
| Division: | General Division |
| | |
| Registry: | New South Wales |
| | |
| National Practice Area: | Administrative and Constitutional Law and Human Rights |
| | |
| Number of paragraphs: | 56 |
| | |
| Date of last submissions: | 25 March 2026 |
| | |
| Date of hearing: | 24 March 2026 |
| | |
| Counsel for the Applicant: | B Overend |
| | |
| Solicitor for the Applicant: | Zarifi Lawyers |
| | |
| Counsel for the Respondents: | A Hammond |
| | |
| Solicitor for the Respondents: | Australian Government Solicitor |

ORDERS

| | | NSD 145 of 2025 |
| | | |
| BETWEEN: | BKN25

Applicant | |
| AND: | COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent | |

| order made by: | KENNETT J |
| DATE OF ORDER: | 25 MARCH 2026 |
THE COURT ORDERS THAT:

1. The interlocutory application filed on 24 March 2026 is dismissed.

2. The applicant is to pay the respondents’ costs of the interlocutory application as agreed or assessed, with those costs to be payable after the final determination of the proceeding.

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

REASONS FOR JUDGMENT

KENNETT J:

Background

1 The applicant is a national of Afghanistan who first arrived in Australia in 2012. On 28 January 2020 he was granted a Class XE Subclass 790 Safe Haven Enterprise visa (SHEV), which is a type of visa granted to persons to whom it is considered that Australia owes protection obligations.

2 On or about 8 March 2024, the applicant’s SHEV was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). Section 501(3A) requires a visa to be cancelled if the Minister is satisfied that its holder does not pass the “character test” by reason of having a “substantial criminal record” under s 501(6)(a) and (7)(a), (b) or (c) of the Act and they are serving a sentence of full time imprisonment. Where a visa is cancelled under s 501(3A), the Minister is required by s 501CA(3) of the Act to give notice to the holder of the visa and invite representations about revocation of the cancellation decision. The applicant did not make any such representations and no consideration has been given to revoking the cancellation of his SHEV. There is a dispute as to whether the Minister has performed the duty under s 501CA(3).

3 On 27 June 2024, having been released from prison, the applicant was taken into immigration detention under s 189 of the Act. He remained in detention until around 4 February 2025, when the Minister for Immigration and Multicultural Affairs exercised a personal, non-compellable discretion under s 195A of the Act to grant him a visa. The visa that was granted was a Bridging E (subclass 050) visa (BVE).

4 The applicant commenced proceedings in this Court on 5 February 2025, before the grant of the BVE, seeking habeas corpus and a declaration that his detention was unlawful. Following his release from detention, he amended his originating application and filed a statement of claim. He now seeks the following substantive relief:

(a) mandamus to require the Minister to comply with the duty in s 501CA(3);

(b) a declaration that his detention from on or about 29 June 2024 to on or about 4 February 2025 (or alternatively for part of that period) was unlawful; and

(c) damages for false imprisonment.

5 The basis for the claim that the applicant’s detention was not authorised by the Act and therefore unlawful is, according to his statement of claim:

(a) at no time during the period of his detention was there a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future (so that detention was not authorised on the authority of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (NZYQ)); or alternatively

(b) officers under the control of the respondents were not acting with the required “diligence and urgency” to carry out their duty to remove the applicant from Australia as soon as reasonably practicable under s 198 of the Act.

6 A defence was filed on 13 May 2025. The substantive proceeding is in the docket of Stewart J and, since February 2025, various orders have been made for the filing of evidence and submissions and the production of documents. On 11 February 2026 an order was made for the applicant to attend a medical examination with an expert retained by the respondents. The proceeding is listed for final hearing commencing on 11 May 2026.

7 On 7 August 2025, the applicant was granted a Bridging (Removal Pending) (subclass 070) visa (BVR). Visas of this kind are subject to s 76AAA of the Act, which provides for a notice to be given by the Minister to the holder of the visa if the holder is given permission by another country to enter and remain in that country. On the receipt or deemed receipt of that notice, the visa ceases to be in effect (s 76AAA(4)). Grant of the BVR meant that the BVE ceased to have effect.

8 On 8 October 2025, the applicant was granted (without having applied, or even being aware of the application) a Long Term Stay visa by the government of Nauru. On 15 October 2025 he was issued a notice of cessation under s 76AAA. He then became an unlawful non-citizen and therefore subject to being detained under s 189 of the Act.

9 On 23 February 2026 the applicant was taken into immigration detention. It appears that he was detained in Melbourne, having travelled to that city in order to attend the medical examination referred to above. Be that as it may, it is apparent that he was required to be detained under s 189 by any “officer” who located him and reasonably suspected him to be an unlawful non-citizen (which he was). On the same day he was given a notice of intention to remove him from Australia on or after 2 March 2026. Correspondence between the parties’ solicitors ensued and the solicitors for the respondents confirmed by an email on 27 February 2026 that there was “presently no scheduled removal”. The respondents’ solicitors also undertook to give seven days’ notice of any scheduled removal.

10 On 18 March 2026, the applicant signed a written request to be removed from Australia. He specified in this document that he wished to be removed to Afghanistan “only”.

11 On 19 March 2026, the respondents’ solicitors sent to the solicitor for the applicant a letter informing him that the removal of the applicant had been scheduled to occur on 27 March 2026. It was proposed to remove the applicant to Nauru.

12 This prompted the filing of the interlocutory application which is now before me, seeking to restrain the removal of the applicant until the final determination of the proceeding.

The power to grant an interim injunction preventing removal

13 The respondents submit that the applicant comes within the terms of s 198(2B) of the Act. Although s 198(2B) is predicated on an invitation to make representations under s 501CA having been given, the applicant did not submit that his removal should be restrained on that basis: such an argument would more properly be raised by a claim for final relief. Argument proceeded on the basis that at least one of the operative provisions of s 198 applied (noting that the applicant is at least within s 198(1)).

14 Each of those operative provisions is unqualified in its terms: it requires an officer to remove the applicant “as soon as reasonably practicable”. The proposed injunction would prima facie demand non-compliance with that requirement. However, the High Court affirmed in Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; 99 ALJR 486 (MZAPC) that the provisions of s 198 which call for removal must be construed so as to accommodate the grant of an interlocutory injunction by this Court (at [33]-47, 77, [125]-126). The extent of that accommodation was referred to by the majority at [37] as related to “the power of the High Court, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) to ensure the effective exercise of jurisdiction in a proceeding before them”. The nature of this power had been discussed by their Honours earlier at [23]-[29] and was encapsulated at [25] as “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”. Aspects of protecting the “integrity” of the Court’s processes “once set in motion” include “the vindication of its own authority to ensure it can determine the proceeding before it and grant final relief of utility” (at [25], referring to CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391 and Tait v The Queen (1962) 108 CLR 620 at 623-624).

15 Whether these observations point to a materially different standard where it is sought to restrain the exercise of a statutory power or performance of what would normally be a duty, as distinct from other kinds of proceedings where an interim injunction is sought to preserve the status quo, does not need to be definitively resolved here. However, MZAPC makes it clear that, in the present context, the appropriateness of an injunction turns on the need to protect the integrity and efficacy of the Court’s processes (that is, the ability to determine issues fairly and grant effective relief) and not the interests or preferences of the parties per se. It should also be kept in mind that courts are well accustomed to hearing and deciding cases in which there are large disparities between the parties’ resources, legal understanding and access to representation (or where one party is physically absent). Such disparities do not in themselves undermine the integrity of the Court’s processes.

16 In Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 780-781, Hoffmann J referred to a “fundamental principle” that in deciding whether to grant an interlocutory injunction a court “should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’” (“wrong” in the sense of granting an injunction to a party who ultimately fails to establish the relevant right, or denying an injunction to a party who ultimately succeeds). Mortimer J (as her Honour then was) referred to this statement in CPK20 v Minister for Immigration, Citize n ship, Migrant Services and Multicultural Affairs [2020] FCA 825 at 14 and continued (at [15]):

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…

17 This, with respect, is correct. Statutory decision makers rarely if ever have personal or commercial interests in defending their decisions. Instead, justification of an interlocutory injunction to prevent the implementation of a decision or the performance of a duty involves identification of reasons why the course contemplated by the relevant statutory scheme should be “interrupted”. Such reasons must, as MZAPC serves to emphasise, revolve around ensuring the integrity and efficacy of the proceedings by which the lawfulness of the relevant decision (or the scope of the relevant duty) is put in issue.

18 Nothing in these observations denies the utility in the present context of the concepts of a “real issue to be tried” (or a prima facie case) and the “balance of convenience”, by reference to which applications for interlocutory injunctions are normally determined by this and other courts, although the context in which these concepts are deployed must be kept steadily in mind. The parties framed their submissions by reference to these concepts, while also recognising that they do not operate in isolation from each other (cf, eg, Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at 67. The concepts operate somewhat differently in relation to the two limbs of the applicant’s substantive case, and it is useful to consider those limbs separately.

The damages claim

Real issue to be tried

19 The respondents accept that there is a real issue to be tried in relation to the applicant’s claim for damages (and the associated declaratory relief). By [21(c)] of the defence, they admit that from 19 September 2024 to 4 February 2025 there was no real prospect of the removal of the applicant becoming practical in the reasonably foreseeable future and that the detention of the applicant was therefore unlawful. As to that period, the only remaining issue is quantum. As to the period up to 19 September 2024, the respondents rely on the availability of Nauru as a regional processing country in order to contend that the case did not come within the reasoning in NZYQ; however, it was not submitted before me that there was not a real question as to whether that contention is correct.

Balance of convenience

20 It is not suggested that the applicant’s claim for damages will be deprived of utility if he is removed from Australia. The claim can be agitated, damages awarded and an order enforced, wherever in the world the applicant might be. If he is in Nauru when final judgment is delivered, he will receive the final amount due to him in that country.

21 The claim for an injunction in respect of this limb of the case therefore depends on concerns expressed by the applicant and his solicitor, in their respective affidavits, about his ability to conduct the case while he is in Nauru. These concerns relate to the ability of the applicant to give instructions to his legal team and to give evidence.

22 The applicant deposed that it would be “extremely difficult for me to give my best case to the Court if I am forced to do it from Nauru” and that he did not know if he would be able to do so. The more specific concerns that he raised were:

(a) he did not know whether the SIM card in his phone would work in Nauru;

(b) he had only a few hundred dollars in his bank account and did not know where he would live, or how he would pay for the technology needed to participate in his case;

(c) his first language was Farsi and he did not know whether interpreters were available, or whether he could afford one;

(d) he was worried that his mental health (which was “currently very bad”) would suffer if he were removed to Nauru and was afraid that he would not be able to access support and medication, including medicinal cannabis which he understood was prohibited;

(e) he was concerned that he might not be able to instruct his lawyers properly during preparation and during the trial; and

(f) if cross-examined, he wanted the opportunity to be present in court to answer questions.

23 While no witnesses were cross-examined, two points should be noted about this part of the applicant’s evidence. One is that, in his dealings with the Department of Home Affairs, he has described himself as speaking Hazaragi and “Persian” and requested interpreters in Hazaragi. The other is that a medical report obtained by the respondents relating to his fitness to travel suggests that cannabis has not been prescribed to him in immigration detention.

24 The applicant’s solicitor did not claim any experience or direct knowledge of conditions in Nauru, but deposed as follows.

(a)    My ability to obtain timely and accurate instructions from him before the trial commences will likely be compromised, particularly if I am unable to speak with him regularly by phone or audio-visual link.

(b)    My ability to obtain timely and accurate instructions from him during the trial (if he is not present) will be compromised. He will likely need to be present during the trial, if required to give evidence, but also to provide any instructions to counsel briefed for the trial for the purpose of cross-examination.

(c)    I am concerned about the Applicant’s health and his ability to access sufficient care and technology he may require for support before and during the trial and, relatedly, his ability to participate in the trial if his health is poor.

(d)    If there are technical issues during the course of the hearing, it may result in the Applicant needing to seek adjournments from time-to-time.

25 The respondents relied on a detailed affidavit from Ms Shan Strugnell, a Branch Head in the Department of Home Affairs who oversees relations with agencies of the government of Nauru, including in relation to regional processing. She deposed to having engaged directly with senior Nauruan officials by email, text and video conferencing, sometimes on a daily or weekly basis, and having travelled to Nauru approximately eight times in the last 12 months. The important aspects of her evidence are as follows.

(a) Internet access in Nauru is currently via satellite, with three services available. These are subject to occasional outages (around once every two weeks) caused by inclement weather, which usually occur in the afternoon and are resolved by the evening. Aside from these outages, the services are sufficiently reliable for Microsoft Teams meetings.

(b) An undersea cable was connected to Nauru in August 2025 and work was expected to be completed on this by the end of March 2026. Internet services via this cable were expected to come online around a month later.

(c) Regulations made by the government of Nauru (which were annexed to Ms Strugnell’s affidavit) set out the terms and conditions for Long Stay visas. These include that a visa holder is entitled to seek employment; is to be provided with accommodation and a living allowance; and is to have access to health services “including telecommunication and telehealth”, welfare and education services.

(d) On arrival, settled persons are provided by the government with a SIM card which can be used in their personal devices.

(e) If the applicant needs other devices (such as a laptop) to communicate with his legal team or participate in hearings, arrangements could be made for him to attend government offices and use facilities.

(f) At a meeting on 22 January 2026, she was informed that the Supreme Court of Nauru has video link facilities (in court and in offices) which would be made available to settled persons as often as needed for the requirements of Australian courts.

(g) Officers of Nauru’s Department of Internal Affairs are assigned to support settled persons. She was advised at the meeting referred to above that such officers could assist the applicant by facilitating court appearances.

(h) The government of Nauru provides interpreter services to settled persons. She has been informed that two NAATI qualified interpreters in the Hazaragi language are currently in Nauru.

26 Although it was pointed out that this evidence is untested, no application was made to cross-examine Ms Strugnell. I proceed on the basis that her affidavit faithfully records her own experiences and observations of communications between Australia and Nauru and the information made available to her by officials of that country.

27 The evidence before me therefore points to the following conclusions about the conduct of the trial in the event that the applicant is removed to Nauru.

(a) He will be able to communicate with his legal team sufficiently to give instructions, although that process may occasionally be delayed by internet outages while the connection remains dependent on satellites.

(b) He will be able to observe the hearing should he wish to do so, although having access to the appropriate facilities may take some effort and organisation. The connection may be of a lesser quality or more prone to drop out than litigants have come to expect in Australia, but this is a matter of degree rather than a fundamental difference. It will be open to the primary judge to adjourn the hearing when necessary and potentially to direct the respondents to use their good offices to facilitate access to the necessary equipment for the applicant. Interpreters in appropriate language are available in Nauru.

(c) The applicant’s evidence in chief will be given by affidavit. As with any hearing using an audio-visual link, cross-examination of the applicant will probably not proceed as smoothly as it would if he were in the courtroom. However, the evidence does not indicate that it would need to proceed in a significantly different way to the cross-examination of a witness located in another part of Australia.

(d) There is legitimate cause for concern about the effect of moving to another country on the applicant’s mental health and the availability of services to assist him in that regard. However, no medical evidence was adduced. There is not a sufficient basis to conclude that the applicant’s health issues would be likely to compromise the conduct of the proceeding to any particular degree.

28 The applicant referred in submissions to Mastipour v Secretary, Department of Immigration and Multicultural & Indigenous Affairs [2004] FCA 1571; 140 FCR 137 at [35], 37. In circumstances where the applicant’s credit was likely to be crucial to the resolution of the case, his Honour considered it “essential to the Court’s capacity properly to determine the claims” that he should give his evidence in person. There, as here, the applicant would be giving evidence using an interpreter who would be either remote from the applicant or remote from the Court. However, both the quality (and ease of use) of video conferencing technology and the familiarity of courts and practitioners with the use of that technology have changed very substantially since 2004. The experience of the COVID-19 pandemic, in which courts had to conduct trials by video link or adjourn them for an indeterminate period, forced judges and practitioners (and witnesses) to get used to the adducing of oral evidence by video link (see eg Capic v Ford Motor Company of Australia Ltd [2020] FCA 486 (Perram J)) and it is now a regular occurrence.

29 Three further observations should be made.

(a) First, to the extent that a witness’s demeanour is still regarded as a sound basis for assessing their credibility, experience shows that modern video conferencing technology is of sufficient quality to allow observations of demeanour to be made.

(b) Secondly, the inconvenience and potential disadvantage arising from a witness giving evidence by video link is not all one way. It is probably more common for the party calling a witness to seek to have that witness’s evidence heard by video link and for the cross-examining party to want the witness present in court.

(c) Thirdly, this proceeding was commenced in the New South Wales Registry of the Court and the trial will (as I understand it) take place in Sydney. The applicant is in immigration detention, currently in Melbourne. There is therefore a substantial likelihood that, if not removed from Australia, the applicant will still need to observe the proceedings and give evidence by video link.

30 Accordingly, while the apprehensions of the applicant and his representatives are understandable, I am not satisfied that the balance of convenience favours the grant of the proposed injunction.

The mandamus claim

Real issue to be tried

31 Counsel for the respondents submitted forcefully that the applicant’s claim for mandamus is doomed to fail and does not raise a real issue to be tried. It was noted that the respondents have not sought summary dismissal of this claim; however, this does not prevent the respondents from putting the submission now. The submission proceeded from, and sought to summarise, the arguments in the respondents’ written submissions in the substantive proceeding (which were filed in October 2025). I have approached this issue with hesitation, because the same point will shortly be agitated in more detail before the trial judge. However, it is necessary that I should come to a view on it in order to decide the present application.

32 Section 501CA provides, relevantly, as follows.

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)     This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)     For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)     would be the reason, or a part of the reason, for making the original decision; and

(b)     is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)     As soon as practicable after making the original decision, the Minister must:

(a)     give the person:

(i)     a written notice that sets out the original decision; and

(ii)     particulars of the relevant information; and

(b)     invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(3A) The notice under subsection (3) must be given in the prescribed way.

(4)     The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

(5)     If the Minister revokes the original decision, the original decision is taken not to have been made.

...

33 The claim for mandamus, as pleaded, relies on an allegation that, during a telephone conversation in about December 2023, an unidentified “delegate of the Minister” said words to the following effect to the applicant (at [36]):

(a)     if the Applicant’s protection visa was cancelled, the Applicant would have 28 days to appeal, but if he did not appeal, he would then be removed from Australia (“ the First Representation ”); and/or

(b)     the Applicant would either be removed from Australia on the day of his release from prison, or within 48 hours of his release from the detention centre next to Perth airport where the Applicant would be taken upon his release from prison (“ the Second Representation ”).

34 The respondents deny that these representations were made. They propose to cross-examine the appellant but have not adduced evidence. The respondents’ submissions on the present application proceeded on the assumption that the applicant will prove that the representations were made.

35 It is further alleged (at [37]) that the representations referred to above were:

(a)     misleading in a material particular; and/or

(b)     procedurally unfair to the Applicant; and/or

(c)     irrational or unreasonable.

36 The statement of claim then records the sending of a “cancellation letter” to the applicant around 8 March 2024, which was given to the applicant, and an officer telling him that he had “28 days to appeal” the decision referred to in the letter. It continues (at [41]-[42]):

The Applicant did not appeal the Cancellation Decision.

The Applicant did not appeal the Cancellation Decision because, inter alia:

(a)     the Applicant had already requested that he be removed to Afghanistan;

(b)     the Applicant’s request at (a) was on the basis of the First Representation and/or the Second representation;

(c)     the Applicant believed the First and Second Representations to be true and/or correct

37 On this basis, it is alleged (at [43]) that either:

(a) the Minister “failed to exercise the duty” in s 501CA(3);

(b) the process leading to the “exercise” of the duty, and its purported “exercise”, were “unfair” and affected by jurisdictional error; or

(c) the process, and/or the purported “exercise” of s 501CA(3), were “not legally reasonable”.

38 This argument faces a number of very significant difficulties.

39 First, how the representations were misleading and how they could realistically have caused the applicant to decide not to seek revocation of the cancellation of his visa are very unclear. The content of the representations went to:

(a) the fact that if the applicant’s visa was cancelled he could “appeal” but needed to do so within a fixed time (which is not alleged to have been wrong); and

(b) what would happen if he did not “appeal” (he would be removed from Australia, potentially quickly).

40 Most people in the applicant’s position would react to this news by being on the lookout for a cancellation letter and thinking about whether to “appeal”. Accepting that (as alleged) the applicant reacted by deciding to request that he be removed to Afghanistan, that was a personal decision of his that was by no stretch of the imagination the only rational response to the representations. Further, having made that request (but not yet having been removed), it was still clearly open to the applicant and in his interests to seek revocation after the cancellation letter arrived. Nothing in the pleaded representations suggested that he was limited to one course or the other.

41 Secondly, attaching conclusory labels drawn from the discourse of jurisdictional error (“procedurally unfair”; “irrational or unreasonable”) to the representations does not assist. These were not purported exercises of statutory power whose legal effect is in issue.

42 Thirdly, (and assuming now that the applicant was misled in some way by the representations), the Minister had a duty to perform under s 501CA(3) – to send a written notice containing specified information – rather than something to be “ exercised ”. There were no relevant factors to be considered, no requirements to afford anybody a hearing, and no power to decide whether or when to give the required notice or what it should say. Either the duty was performed or it was not. If it was performed (and there is no allegation that the cancellation letter failed to comply with any requirement in s 501CA(3)), it is hard to see how its performance could be negated as a matter of law by extraneous events. For the same reasons, if a written notice was given that complied with the requirements of s 501CA(3), describing the issue of that notice and the process leading to it as “unfair” or “not legally reasonable” does not assist the applicant. There was no other course that the Minister could have taken consistently with the statute; and if the argument is that circumstances arose in which the Minister was somehow unable to give a proper notice, it is difficult to see why mandamus should lie to require him to give a notice.

43 Relatedly, there is High Court authority which stands against the efficacy of a notice being affected by how the recipient understands it or whether the recipient (assuming they have legal capacity) has the necessary literacy, English language skills and facilities to make an effective response: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112 at [22]-[26], [28]-31 (EFX17) (see also BIF2 3 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44; 99 ALJR 75 at [52]-60). EFX17 strongly supports the view that the question whether the sending of the cancellation letter to the applicant constituted performance of the duty in s 501CA(3) is not affected by things that the applicant had decided to do as a result of things said to him some months earlier.

44 The applicant, as I understand the submission, seeks to avoid this conclusion by invoking the principle that an administrative decision is void if it was the result of fraud (citing SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 (SZFDE)). However, this was not a case of a statutory body or officer with a decision-making role and attendant obligations of procedural fairness that could be “stultified” (cf SZFDE at [51]) by an applicant having been fraudulently misled. The function of the Minister, as emphasised above, was to give the applicant a written notice with specified contents. That was done. Assuming that the effectiveness or the utility of the notice might have been affected by an impression that the applicant had formed about what he ought to do, it does not follow that the giving of the notice somehow did not occur or failed to comply with the statutory requirement. In any event, fraud is not expressly pleaded and the representations as set out in the statement of claim do not smack of dishonesty.

45 For these reasons, the mandamus claim does not raise a real issue to be tried.

Balance of convenience

46 In BHRR v Minister for Immigration and Citizenship [2025] FCA 1369, one of the grounds relied upon by the applicant was that the notice of a delegate’s decision under s 501CA(4) had not properly identified the time limit for seeking merits review (leading to his application to the (then) Administrative Appeals Tribunal being made out of time). The Minister in that case made a concession that Wheelahan J recorded as follows (at [54]):

…if the applicant is removed to Nauru and is then able to conduct this proceeding and a subsequent review by the Tribunal to a successful conclusion, with the result that the delegate’s decision is set aside by the Tribunal, the applicant’s protection visa, if reinstated, would not be effective to allow the applicant to return to Australia. In order to return to Australia, the applicant would have to apply for another visa, and the Minister accepted that the applicant’s character considerations would be relevant to the Minister’s decision on any such application.

47 His Honour did not then find in terms that the removal of the applicant would render his claim moot. However, in granting an interlocutory injunction, he put it this way at [58]:

In relation to the balance of convenience examined through the lens of the protection of the Court’s processes, I am satisfied that removal of the applicant to Nauru will likely jeopardise the utility of the relief that he seeks. The practical utility of the relief that the applicant seeks is that he be able lawfully to remain in Australia, including on a BVR.

48 The respondents made a similar concession here. Taking that at face value, and assuming that the mandamus claim succeeds:

(a) the applicant would be served with a fresh notification of the cancellation of the SHEV;

(b) the applicant would be entitled to, and very likely would, make representations seeking the revocation of that cancellation;

(c) there is a possibility that a delegate of the Minister (or the Administrative Review Tribunal on review) would be satisfied that the cancellation should be revoked (and that the Minister would not intervene to set that decision aside under s 501BA); and

(d) by operation of s 501CA(5), the cancellation decision would be “taken not to have been made”.

49 The effect of the concession is that, if the applicant is outside Australia at the time the cancellation decision is revoked (if that occurs), he would need to apply successfully for another visa in order to return to Australia. Character issues arising from his criminal offending would be relevant to the consideration of that application; however, in this hypothetical scenario, there would be a decision to the effect (under s 501CA(4)) that he passed the character test or that there was another reason why his SHEV should not have been cancelled. The formulation of Wheelahan J (that the utility of relief would be “jeopardised” rather than erased) is therefore apt in this case.

50 Discussion of this point with counsel led to consideration of cl 790.511 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), which is part of the provisions relating to a SHEV. That clause provides that a SHEV is a “Temporary visa permitting the holder to travel to, enter and remain in Australia until [relevantly here] the end of 5 years from the date of grant of the first visa”. This form of words raises a question whether the respondents’ original concession was correct, but I will continue to assume that it was. However, it led counsel for the respondents to raise a further point: the applicant’s SHEV, having been granted on 28 January 2020, would have ceased to have effect in January 2025 if it had not been cancelled.

51 What follows from this is that, should he succeed in having the cancellation of his SHEV revoked, the applicant will still be without a visa. He will need to apply successfully for another visa if he wishes to remain in Australia (assuming he is not removed) or if he wishes to re-enter (assuming he is removed).

52 Counsel provided further short written submissions on this issue this morning. What emerges from these is that the attempt to have the cancellation of his SHEV revoked has utility for the applicant because the cancellation would be taken not to have occurred and he would therefore not fall foul of provisions in the Act and the Regulations that make a successful application contingent on whether the visa applicant has been the subject of a cancellation. An example is the criteria for grant of a Resolution of Status (subclass 851) visa, which provide expressly for a person who held a SHEV that has ceased to be in effect (other than because of cancellation). The applicant would be entitled to apply for that subclass of visa, but only if he is in Australia at the time of application (item 1127AA(3)(b) of Schedule 1 to the Regulations). He would also need to satisfy Public Interest Criterion 4001, which requires a decision by the Minister not to refuse the visa on character grounds even though the visa applicant does not satisfy the character test.

53 It may be that there are other visas for which the applicant could apply; time has not permitted a comprehensive review. Whatever visa application he is able to make (in Australia or offshore) would appear to be capable of succeeding if the decision-maker makes a discretionary decision that the character concerns arising from his offending and imprisonment should not stand in the way. However, success on the mandamus application has clearer potential utility for the applicant (albeit conditional on subsequent decisions going his way) if he remains in Australia than if he is removed.

54 Other issues potentially relevant to the balance of convenience have been discussed above in relation to the claim for damages. These support the applicant’s position, but to a very limited degree: they essentially point to matters of convenience rather than any substantial undermining of the Court’s processes.

55 For these reasons, if I were able to see a realistic pathway to success for the mandamus claim, I would probably conclude that the removal of the applicant should be restrained. However, I am firmly of the view that no such pathway exists and I should give effect to that view. The risk of “injustice” (in the sense discussed in CPK20) is much greater if the proposed injunction is granted than if it is not, because of the very high probability that the interruption of the normal administration of the Act and the attendant costs of keeping the applicant in detention until the resolution of the proceeding would ultimately prove not to be justified. (As to the costs of detention, it should be noted that the applicant through his counsel proffered the usual undertaking as to damages; however, the applicant’s own affidavit contained evidence that he had no significant financial resources.)

Disposition

56 For these reasons, the interlocutory application will be dismissed.

| I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett. |
Associate:

Dated: 25 March 2026

Top