Levy v Minister for Immigration

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.