Minister received penal notice

1    On 14 October 2025, the applicant filed an application for an extension of time to lodge an originating application for review of a decision made by the Administrative Appeals Tribunal (as it was then called), which affirmed a decision by a delegate of the Minister to refuse to grant a protection visa to the applicant.

2    The applicant also filed an urgent interlocutory application for orders restraining the Minister (including by his officers, delegates, servants or agents) from removing the applicant involuntarily from Australia until the hearing and determination of his application for an extension of time and, if an extension of time is granted, the application for review.

3    In an accompanying certificate of urgency, the applicant’s solicitor stated that the applicant had been notified that he will be removed from Australia on 16 October 2025.

4    As will appear from the facts set out below, the Minister proposes to remove the applicant to Nauru pursuant to ss 198 and 198AHB of the Migration Act 1958 (Cth), after having given notice to the applicant that s 76AAA applies to him. The effect of s 76AAA is that, if a non-citizen who holds a Subclass 070 (Bridging (Removal Pending)) visa (BVR) is granted permission to enter and remain in a foreign country that is a party to a “third country reception arrangement”, the BVR ceases to be in effect immediately after the person receives or is taken to have received notice that the section applies in relation to that non-citizen. There are exceptions to the application of s 76AAA, as set out in s 76AAA(1)(d).

5    For such purposes, a third country reception arrangement is defined in s 198AHB(1) of the Migration Act as an arrangement entered into by the Commonwealth with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.

6    The Minister refused to provide an undertaking not to remove the applicant from Australia, and opposed the interlocutory application.

Section 486D(2) of the Migration Act 1958 (Cth) provided:

A person must not commence a proceeding in the Federal Court seeking the exercise of the court's original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.

Some of the questions to the FCA were as follows:

Question 1: Did s 486D(2) impose a jurisdictional precondition that must be met on the commencement of proceedings, and which could subsequently be “cured” by amendment?

Question 2: Is an application for an extension of time within to file a judicial review application a “proceeding” within the meaning of s 486D(2), which cannot be commenced without meeting the disclosure requirements imposed by that provision?

Question 3: Did s 486D(2) require the disclosure of an earlier judicial review proceeding "even if it was discontinued without any judicial consideration or determination of the merits of the proceeding"?

Question 4: Did s 486D(2) apply to a previous proceeding comprising an application for an extension of time to bring a proceeding for judicial review of or appeal from a tribunal decision, with the result that the incompetent application for an extension of time under r 33.13 of the Federal Court Rules 2011 (Cth) “to start an appeal mentioned in section 44(2A) of the [Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)]” should have been disclosed?

Question 5: If the answer to Question 4 is 'yes', did s 486D(2) "prevent the applicant from filing a fresh application for an extension of time in relevantly identical form, but with the disclosure of the earlier proceeding"?

Question 6: In determining as part of an interlocutory application for injunction whether there is a serious question to be tried, does the the significant length of the delay in seeking judicial review "of itself mean that there is no serious question as to whether an extension of time would be granted"?

Question 7: In determining as part of an interlocutory application for injunction whether there is a serious question to be tried, does the the significant length of the delay in seeking judicial review "of itself mean that there is no serious question as to whether an extension of time would be granted"?

Question 8: Will the subject matter of the proceeding be destroyed if the applicant is removed to Nauru, because the applicant could no longer be granted a protection visa once he is removed from Australia, by reason of s 36(2) of the Migration Act 1958 (Cth), and cl 866.411 of Sch 2 to the Migration Regulations 1994 (Cth), which the result that this factor weighs in favour of granting the injunction?

Question 9: Does the fact that the grant of an injunction would restrain the enforcement of the law by preventing officers of the Commonwealth from performing a statutory duty, and thereby frustrate the legislative scheme of the Migration Act, provide a strong reason not to grant an interlocutory injunction in the present case?

Question 10: Should the fact that the applicant has not gotten into any trouble in the period since he was released from detention weigh in favour in the balance of convenience?

The FCA answered those questions as follows: