Vella v Minister for Immigration and Border Protection

Gageler J of the High Court of Australia considered an application by Mr Vella for an extension of time to seek an order to show cause in relation to a decision made by the Minister for Immigration and Border Protection to cancel his permanent residency visa. The application was made approximately 16 months after the 35-day time limit imposed by s 486A of the *Migration Act 1958* (Cth) for applications to the High Court's original jurisdiction concerning migration decisions.

The central legal issue before the Court was whether to grant an order extending the 35-day time limit under s 486A(2) of the *Migration Act 1958* (Cth), which requires the Court to consider whether such an extension is necessary in the interests of the administration of justice and whether the case for an extension is exceptional. Mr Vella sought to challenge the Minister's decision on three grounds: that the relevant provision of the Act was beyond the Commonwealth Parliament's legislative power concerning "aliens"; that the provision infringed Chapter III of the Constitution by conferring judicial power on the Minister or curtailing the right to judicial review; and that the Minister failed to consider mandatory considerations and erred in law.

Gageler J refused the application for an extension of time. His Honour accepted, on the basis of Mr Lewis's affidavit, that Mr Vella was not advised by his previous solicitors of his right to bring an application to the High Court under s 75(v) of the Constitution in respect of the visa cancellation decision. However, Mr Vella made no allegation of shortcomings on the part of his former legal representatives. Gageler J found that the grounds advanced for challenging the Minister's decision, particularly the first two, were ambitious and would require significant departures from established High Court jurisprudence. Consequently, the Court concluded that the case for an extension of time was not exceptional and that it was not necessary in the interests of the administration of justice to grant the extension.

The application for an order under s 486A(2) of the *Migration Act 1958* (Cth) was refused, the application for an order to show cause was dismissed, and Mr Vella was ordered to pay the defendants' costs.