Background
Joseph Charles Ratapu arrived in Australia in 1998 and had a lengthy offending history. After he was sentenced to 18 months’ imprisonment in March 2025, a ministerial delegate mandatorily cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth). Another delegate refused to revoke the cancellation, and the Administrative Review Tribunal affirmed that decision in May 2026.
Ratapu did not seek judicial review within the statutory period. On 11 August 2026, he applied to the Federal Court for an extension of time, supported by a draft originating application. After receiving notice that he would be removed to New Zealand on 26 August, he urgently sought an interlocutory injunction preventing his removal while the extension and judicial-review proceedings remained unresolved.
The Court’s Holding
Justice Hespe dismissed the interlocutory application because Ratapu had not established a serious question to be tried or a prima facie case for final relief and the associated extension of time. Although his evidence, taken at its highest, offered an explanation for the delay, the proposed judicial-review grounds lacked substance. The Tribunal had considered and accepted the written evidence from Ratapu’s supporting witnesses, and its reasons did not show that it drew an adverse inference from their failure to give oral evidence. The claims concerning incarceration, lack of representation, questioning by the Tribunal, rehabilitation evidence, and misunderstanding of his case were likewise unsupported by the Tribunal’s reasons.
The Court observed that the draft grounds appeared to have been generated by artificial intelligence and included placeholders and allegations disconnected from the Tribunal’s actual reasoning. It also considered, but did not find an arguable error in, the Tribunal’s description of the legal consequences of non-revocation as neutral, because the reasons as a whole expressly weighed the serious effects of removal and family separation.
The balance of convenience did not justify relief given the absence of a prima facie case. Removal to New Zealand would make Ratapu’s participation more difficult but would not destroy the subject matter of the proceeding, and remote participation remained available. An injunction also would not allow him to support his father in person because he would remain in immigration detention. The Court dismissed the application and ordered Ratapu to pay the Minister’s costs.
Key Takeaways
- An applicant seeking to prevent removal must show a sufficient prospect of obtaining final relief; hardship from removal cannot compensate for proposed judicial-review grounds that lack substance.
- Procedural-fairness allegations must be tied to the Tribunal’s actual procedure and reasoning. The absence of legal representation or incarceration does not, without more, establish unfairness.
- AI-generated court documents containing placeholders or allegations inconsistent with the decision under challenge may seriously undermine an applicant’s ability to demonstrate an arguable case.
Why It Matters
The decision illustrates the close relationship between the merits of an underlying migration challenge and the balance of convenience on an urgent application to restrain removal. Even where delay may be explicable and removal will create practical hardship, interlocutory relief is unlikely if the proposed grounds do not identify an arguable jurisdictional error.
It also provides a pointed warning about using generative AI in litigation without checking the resulting pleading against the record. Grounds framed in generic terms, left with drafting instructions, or divorced from the tribunal’s reasons will not establish the prima facie case required for urgent relief.