FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEVY v MINISTER FOR IMMIGRATION | [2020] FCCA 2754 |
| Catchwords: MIGRATION – Expedited hearing – urgent application for interlocutory relief to restrain the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs from deporting the applicant to New Zealand – request for revocation of cancellation of visa on character grounds – substantive application seeks an extension of time in aid of a declaration that the Minister has not performed his duties under s.501CA(3) of the Migration Act 1958 (Cth) and a writ of mandamus requiring the Minister to perform his duties under s.501CA(4) of the Act – exercise of Minister’s discretion to cancel Class TY Special Category (subclass 444) visa on character grounds – applicant convicted of multiple serious offences – applicant sentenced to 30 months imprisonment – applicant received notice of cancellation of visa on 14 January 2019 – where application for extension of time brought 19 months after notification of cancellation – no proper explanation for delay – whether extension of time to hear substantive application in the interests of the administration of justice – whether there is a serious question to be tried – consideration of merits of substantive application – where applicant has significant criminal record resulting in cancellation of visa – where no reasonable prospects of success – where the balance of convenience does not favour the applicant – no serious issue to be tried demonstrating jurisdictional error – no prima facie case – interim injunction discharged – application for injunctive relief pending determination of judicial review application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) r.44.12 Migration Act 1958 (Cth), ss.189, 477(1), (2), 501(3A), (6), (7), 501CA(1), (3), (4) |
| Applicant: | LENNY LEVY |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | MLG 3293 of 2020 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 11 September 2020 |
| Date of Last Submission: | 11 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 8 October 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Order 2 of the Orders made on 11 September 2020 be discharged.
The Applicant’s application for an interlocutory injunction preventing the Respondent, by himself or his servants or agents from removing the Applicant from the Commonwealth of Australia pending the conclusion of this proceeding is dismissed.
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Details
- Case
- [2020] FCCA 2754
- Decision Date
CaseChat Overview and Summary
In the Federal Circuit Court of Australia, Judge C. E. Kirton QC considered an urgent application for interlocutory relief brought by an applicant seeking to restrain the Minister for Immigration from deporting him to New Zealand. The applicant's visa had been cancelled on character grounds due to multiple serious offences, for which he received a 30-month prison sentence. The substantive application sought an extension of time to argue that the Minister had failed to perform his duties under s.501CA(3) of the *Migration Act 1958* (Cth) and sought a writ of mandamus to compel the Minister to perform his duties under s.501CA(4).
The court was required to determine whether to grant an extension of time for the applicant to pursue his judicial review application, considering the significant delay of 19 months since the visa cancellation notice. This involved assessing whether there was a serious question to be tried, the merits of the substantive application, and whether the balance of convenience favoured granting the injunction. A key issue was the applicant's claim that he had not received the relevant notification from the Minister inviting him to make representations regarding the visa cancellation, which would impact the commencement of the 28-day period for such representations under Regulation 2.52 of the *Migration Regulations 1994* (Cth).
The court found that the applicant had not provided a proper explanation for the extensive delay in bringing his application. Despite the applicant's stated difficulties in accessing legal assistance and his detention, the court concluded that these reasons did not sufficiently justify the 19-month lapse. Furthermore, the court considered the merits of the substantive application, noting the applicant's significant criminal record leading to the visa cancellation. It was held that there were no reasonable prospects of success for the substantive application, and therefore, no serious issue to be tried demonstrating jurisdictional error or a prima facie case. Consequently, the interim injunction was discharged, and the application for injunctive relief was dismissed.
The court was required to determine whether to grant an extension of time for the applicant to pursue his judicial review application, considering the significant delay of 19 months since the visa cancellation notice. This involved assessing whether there was a serious question to be tried, the merits of the substantive application, and whether the balance of convenience favoured granting the injunction. A key issue was the applicant's claim that he had not received the relevant notification from the Minister inviting him to make representations regarding the visa cancellation, which would impact the commencement of the 28-day period for such representations under Regulation 2.52 of the *Migration Regulations 1994* (Cth).
The court found that the applicant had not provided a proper explanation for the extensive delay in bringing his application. Despite the applicant's stated difficulties in accessing legal assistance and his detention, the court concluded that these reasons did not sufficiently justify the 19-month lapse. Furthermore, the court considered the merits of the substantive application, noting the applicant's significant criminal record leading to the visa cancellation. It was held that there were no reasonable prospects of success for the substantive application, and therefore, no serious issue to be tried demonstrating jurisdictional error or a prima facie case. Consequently, the interim injunction was discharged, and the application for injunctive relief was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Regulation 2.52 of the Migration Regulations 1994 (Cth) sets out the time limits for the making of representations. Regulation 2.52 provided:2.52 Refusal of cancellation of visa – representation in respect of revocation of decision by Minister (Act, s 501C and 501CA)[…](2) The representations must be made:[…](b)for a representation under paragraph 501CA(3)(b) of the Act - within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act. In the Application the Applicant alleges the following as the grounds for his extension of time application (Extension of Time Grounds):1.I am unable to access a fee charging lawyer and I have been attempting to access free assistance from Victoria Legal Aid and community legal centres.2.I am held in an immigration detention centre and I have only now been able to access advice and assistance to apply to the Court. In the Application the grounds of the substantive application are stated to be as follows (Grounds of Application):1. The purported invitation and notification dated 4 March 2020 prepared by the respondent for s 501CA (3) was not given to the Applicant, and that, therefore, the 28 day time period for the making of representations to the Minister, pursuant to s 501CA (4) of the Act, about why the Minister should revoke the cancellation decision, did not commence at that time.Particulars The Applicant’s Affidavit is very short and states as follows:1.I am the applicant in these proceedings. 2.I am applying for judicial review of the notification of the decision to cancel my visa. 3.By letter dated 14 January 2019 an Officer of the Department of Home Affairs sent a letter to the prison I was held notifying me of the cancellation of my Subclass 444 visa and inviting me to make representations of why that decision should be revoked. Annexure LL1 is a copy of this letter. 4.[Insert your reasons for why you say you did not receive the Department’s notification letter dated 14 January 2019]. The issue in this case alleged in the Grounds of Application is that the relevant invitation and notification prepared by the Minister for the purposes of s.501CA(3) of the Act (Cancellation Notice)[15], was not given to the Applicant. The Grounds of Application refer to the Cancellation Notice with an incorrect date of “4 March 2020”. The correct date of the Cancellation Notice is “14 January 2019”. The correct date of the Cancellation Notice is referred to in the final orders sought in the Application and also in paragraph 3 of the Applicant’s Affidavit. The Cancellation Notice is also annexed to the Applicant’s Affidavit. I therefore intend to treat the reference to the date of “4 March 2020” as an error in the Grounds of Application and the date should be “14 January 2019”. [15] Jackson Affidavit at [6] and MAJ-1, pp 7-11. The Applicant has previously applied for and been refused a permanent visa whilst in Australia. On 9 November 2010 the Applicant lodged a Child Residence visa application, which was refused by the Minister’s Department (Department) on 5 June 2014. On 29 October 2018 the Applicant was convicted in the County Court of Victoria at Melbourne of carjacking, attempted robbery and unlicensed driving and was sentenced to 30 months imprisonment[16]. [16] Jackson Affidavit at [4]-[5].
Ratio Decidendi
Legal Principle Established
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