Background
FLLB, a South Sudanese national, arrived in Australia in 2007 at age 17 on a Global Special Humanitarian visa. His visa was cancelled in 2017 after he was convicted of assault occasioning actual bodily harm and sentenced to 18 months’ imprisonment. He later sought a Protection Visa based on feared persecution in South Sudan. Although the Minister found that he satisfied the refugee and complementary-protection criteria, the visa was refused because he did not satisfy statutory criteria concerning danger to the Australian community. The Administrative Appeals Tribunal affirmed that refusal in 2022.
Following the High Court’s decision in NZYQ, FLLB was granted a Bridging (Removal Pending) visa and released from immigration detention in November 2023. In July 2026, Naoero, formerly Nauru, granted him a Long Term Stay Visa. Australian authorities subsequently detained him and notified him that he would be removed to Naoero on or after 2 September 2026.
FLLB commenced proceedings seeking a declaration that s 48A of the Migration Act 1958 (Cth) did not prevent him from lodging a second Protection Visa application based on feared harm in Naoero and possible onward removal to Sudan or South Sudan. He urgently sought an interim injunction preventing his removal until that substantive issue could be decided.
The Court’s Holding
Justice Rangiah granted the interim injunction, restraining the Minister and the Commonwealth from removing FLLB to Naoero pending the final determination of the proceeding or further order. The Court held that it had power to preserve the integrity of its processes by restraining removal under s 198(6), and that such an injunction did not improperly interfere with the administration of the Migration Act.
FLLB had shown an arguable, though not strong, case that later statutory amendments concerning third-country reception arrangements allowed the earlier Full Court authorities on s 48A to be distinguished. The Court did not decide whether s 48A ultimately permitted his proposed second Protection Visa application.
The balance of convenience strongly favored interim relief. Removal would deprive the requested declaration of practical utility because FLLB could not validly pursue the proposed visa application after leaving Australia. Given his apparently genuine claim of serious harm in Naoero, refusing relief risked injustice and would effectively determine the substantive proceeding before it was heard.
Key Takeaways
- The ruling preserves FLLB’s position pending a final hearing; it does not determine whether s 48A permits his second Protection Visa application.
- A federal court may temporarily restrain removal under s 198(6) when necessary to prevent pending proceedings from being frustrated.
- An arguable case may justify interim relief where removal would eliminate the practical value of the substantive proceeding and expose the applicant to potentially serious harm.
Why It Matters
The decision shows how interim injunctions can preserve meaningful judicial review when removal would make final relief ineffective. It also identifies an unresolved question about how the statutory bar on further Protection Visa applications operates when Australia proposes removal to a third-country reception country that was not the subject of the applicant’s original protection claim.