Background
AJQ24 sued the Commonwealth for damages arising from alleged false imprisonment and assaults during immigration detention. Following the High Court’s decision in Abdel-Hady, the Commonwealth admitted that he had been falsely imprisoned from 25 May 2021 to 8 November 2023, leaving damages and several other claims for later determination.
AJQ24 had been released in November 2023 on a Bridging R visa. After Naoero granted him a long-term stay visa, Australian Border Force officers detained him on 19 August 2026 and the Commonwealth proposed removing him there. AJQ24 sought habeas corpus, permission to add claims concerning his renewed detention, and an injunction preventing removal. The Court temporarily restrained removal while deciding whether that injunction should continue.
The Court’s Holding
Justice McDonald held that AJQ24 had not established a serious question to be tried concerning the validity of the steps leading to his detention or the lawfulness of his proposed removal to Naoero. The Court rejected the asserted basis for continuing to restrain removal, including the contention that the relevant statutory scheme impermissibly authorised arbitrary detention.
The Court also declined to preserve the injunction merely to facilitate AJQ24’s pending damages case. Although removal would make his participation less convenient, the evidence indicated that communications and audiovisual facilities in Naoero would provide an adequate practical basis for him to instruct his lawyers and participate remotely. The injunction was therefore discharged, but only with effect from 5:00 p.m. on 11 September 2026, giving AJQ24 seven days to seek leave to appeal or other relief.
Key Takeaways
- An injunction restraining statutory removal required a serious question to be tried; AJQ24 failed to establish one concerning his visa cessation or proposed removal.
- Removal abroad does not itself frustrate pending litigation when adequate arrangements likely exist for remote communication and participation.
- Because removal could have immediate and irreversible consequences, the Court preserved the injunction briefly so AJQ24 could pursue appellate or other interlocutory relief.
Why It Matters
The decision applies the Federal Court’s power to restrain removal where necessary to protect its processes, while emphasizing that inconvenience or physical absence alone will not justify an injunction. Applicants must provide evidence showing that removal would materially prevent effective participation or impair the Court’s ability to determine the proceeding and grant useful relief.
It also illustrates how the Bridging R visa cessation and third-country removal regime can operate for members of the former NZYQ cohort, while leaving AJQ24’s substantive damages and renewed-detention claims for later determination.