Background
SXHR is a Sri Lankan citizen who arrived in Australia by boat in 2012 as an Unauthorised Maritime Arrival. After a failed application for a Safe Haven Enterprise visa in 2021, he applied for a Bridging E visa (BVE) in November 2024. A delegate of the Minister refused the BVE application on character grounds under s 501 of the Migration Act 1958 (Cth). The Administrative Review Tribunal affirmed that refusal on 3 June 2026. On 24 June 2026, the Minister notified the applicant of removal scheduled for 10 July 2026.
SXHR filed an urgent interlocutory application on 26 June 2026 seeking to restrain his removal from Australia pending determination of his judicial review application challenging the Tribunal’s decision. SXHR was in immigration detention at the time of the hearing before Justice Stellios on 8 July 2026.
The Court’s Holding
Justice Stellios granted the interlocutory injunction, restraining the Minister and Commonwealth from removing SXHR from Australia until the substantive proceeding is determined or further order. The Commonwealth was joined as third respondent, and SXHR was awarded costs of the interlocutory application.
The Court found a serious question to be tried based on inconsistency in the Tribunal’s reasoning. The Tribunal stated it could not assess SXHR’s risk to the community by reference to the uncertain duration of a temporary BVE because it could not know how long he would remain in Australia. However, the Tribunal then discounted weight given to favorable considerations (including ties to Australia and potential non-refoulement obligations) on the basis that the BVE would only provide temporary residence. This differential treatment—where uncertainty about duration was treated as making risk assessment impossible but also as a reason to diminish favorable considerations—raised a serious question about whether the Tribunal had misapplied its statutory task under Direction No 110 (Visa refusal and Cancellation under s 501).
On the balance of convenience, the Court found the injunction favored by two independent factors. First, if removed, SXHR would lose Legal Aid representation and would be unable to prosecute his judicial review claim effectively. Second, if SXHR succeeded on the merits and the matter was remitted to the Tribunal, the Tribunal’s decision would be made with SXHR outside Australia, rendering him ineligible for a BVE under the Migration Regulations, which would frustrate the practical utility of the Court’s final orders.
Key Takeaways
- Federal courts retain power to grant interlocutory injunctions to restrain removal under s 198 of the Migration Act, as affirmed by the High Court in Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5.
- The traditional test for interlocutory injunctions applies: a serious question to be tried (or prima facie case) and a balance of convenience in favor of the injunction. No heightened “strong case” threshold is required despite the statutory duty to remove.
- Courts will consider whether removal would destroy the practical utility of the proceedings, particularly where a successful applicant would be unable to benefit from a remitted decision due to no longer being in Australia.
- Loss of legal representation as a consequence of removal is a significant factor in the balance of convenience, preventing meaningful vindication of legal rights.
Why It Matters
This decision reinforces that courts can intervene to protect their own processes and preserve the efficacy of judicial review in migration matters. The decision makes clear that the Minister’s statutory duty to remove under s 198 of the Migration Act does not automatically trump the court’s power to grant interlocutory relief where there is a serious question to be tried and practical considerations favor preserving the status quo. The court’s emphasis on the differential treatment of uncertainty in the Tribunal’s reasoning—accepting it as a bar to assessing one consideration but using it to diminish others—provides guidance on how courts will scrutinize the reasonableness of decision-making in character-based visa refusals.
The decision also highlights the tension between the enforcement of removal powers and the effective access to justice for vulnerable litigants, particularly where legal aid would terminate if an applicant is removed. It suggests that courts will weigh heavily the practical impossibility of pursuing legal proceedings from abroad when considering whether to grant relief that preserves a litigant’s presence in Australia.