Background
DHV17, whose temporary and bridging visas had ceased or been refused, was liable for removal from Australia under the Migration Act 1958 (Cth). The Administrative Review Tribunal had affirmed the refusal of a further Bridging Visa E in August 2026. He made requests for ministerial intervention under ss 195A and 351, but the Department finalised his s 351 request without referral to a Minister.
On 9 October 2026, while he was being taken to the airport for a 5.10 pm removal flight, DHV17 filed an urgent Federal Court application under s 39B of the Judiciary Act 1903 (Cth). He sought to restrain removal until the interests of his claimed minor Australian-citizen child had been considered, including through possible ministerial intervention under s 195A. A similar interlocutory injunction had been refused by the Federal Circuit and Family Court earlier that day.
The Court’s Holding
Justice Stellios dismissed the application with costs. The Assistant Minister had, on 8 October 2026, declined to consider exercising the s 195A power after receiving a departmental brief that included a “Best Interests of the Child and Family Unit Summary” concerning the child and the child’s mother.
The practical outcome sought by DHV17—consideration of the child’s circumstances in the s 195A ministerial-intervention process—had therefore already occurred. The Court held that no further useful relief could be achieved by an injunction. Section 195A confers a personal discretionary power on the Minister, and expressly imposes no duty to consider exercising it.
The Court also noted, without deciding, further difficulties: there was no substantive judicial-review proceeding to which an injunction could be ancillary, and the application did not identify a particular decision for challenge. In light of its primary conclusion and the urgency, the Court did not determine those issues.
Key Takeaways
- An injunction to delay removal was dismissed because the requested consideration of the child’s interests had already taken place.
- The Minister has no statutory duty to consider exercising the personal intervention power in s 195A.
- The Court flagged that interlocutory relief may be problematic where no substantive judicial-review application is pending.
Why It Matters
The decision illustrates the narrow practical role of urgent removal injunctions where an applicant seeks only to secure consideration through a discretionary ministerial-intervention process. Once the relevant circumstances have been put before, and considered by, the Minister or Assistant Minister, an order delaying removal may serve no remaining purpose.
It also underscores the importance of identifying an actionable decision and a proper substantive judicial-review basis when seeking urgent federal judicial relief in migration matters.