Background
Danzel Mehau’s visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) — the mandatory cancellation provision that applies to non-citizens serving custodial sentences. A delegate of the Minister subsequently declined to revoke that cancellation, and on 30 April 2026 a letter was issued notifying Mr Mehau of the non-revocation decision and advising him that he was liable to detention and removal from Australia. The letter stated that any application for merits review had to be lodged with the Administrative Review Tribunal within nine days, and that the Tribunal had no power to extend that period.
The notice was originally prepared on the assumption that it would be served by hand inside Villawood Immigration Detention Centre. Department officers were unable to effect personal delivery and instead sent the letter by post, but the document itself was never updated to reflect the postal delivery method — it continued to state that the nine-day period began when “this letter was handed to you.” Mr Mehau acknowledged receiving the paperwork, which he collected from the facility’s Property section, in early to mid-May 2026 (by no later than 16 May, when the Department noted he had it). He took no steps to apply to the Tribunal within nine days of receipt.
Late on the evening of Monday 23 June 2026 — the eve of his scheduled removal flight — Mr Mehau contacted the Federal Court Registry after hours, asserting he had been unaware of the imminent deportation and believing the nine-day clock had never started because the letter had not been formally served by hand as it stated. The matter was heard by Needham J in the early hours of Tuesday morning, with Mr Mehau appearing in person and the Minister represented by counsel.
The Court’s Holding
Needham J dismissed the application, finding there was no serious question to be tried. The central issue was whether the defect in the notice — its erroneous statement that the nine-day period ran from hand delivery, when in fact the letter had been posted — was fatal to the validity of the notice or to the commencement of the review period. Applying s 494E(4) of the Migration Act, her Honour held that there had been substantial compliance with the content requirements of s 494E(1)(b): the nine-day hard timeframe was clearly and prominently stated in the letter, and the misdescription of the delivery method caused no substantial prejudice within the meaning of s 494E(2)(b). Her Honour drew on Du v Minister for Immigration and Citizenship [2026] FCA 758, in which Markovic J had similarly upheld a notice containing a different, but analogous, informational error as being in substantial compliance.
On the factual record, Mr Mehau admitted he had received the letter some six weeks before the hearing. Accepting that evidence, Needham J concluded that the nine-day window had long expired without any application to the Tribunal and, because the Tribunal has no statutory power to extend time, merits review was no longer available. With no viable pathway to challenge the non-revocation decision, there was no serious question to be tried and the application for an interim restraining order (including relief under s 39B of the Judiciary Act 1903 (Cth)) was refused.
On the balance of convenience, the Court noted briefly that the Minister was under a statutory duty to remove a non-citizen once a non-revocation decision is made, and that allowing the deportation to be restrained would frustrate the objects of the Migration Act. The Court also observed that Mr Mehau had not acted expeditiously — neither seeking Tribunal review when he received the decision letter nor moving promptly upon learning of his removal date. Costs were ordered against Mr Mehau in the fixed sum of $1,500.
Key Takeaways
- A notice of non-revocation of visa cancellation that misdescribes the method of service (stating hand delivery when the document was in fact posted) can still satisfy the content requirements of s 494E of the Migration Act under the substantial compliance provision in s 494E(4), provided the nine-day review deadline is clearly stated and no substantial prejudice results from the error.
- The nine-day period to apply to the Administrative Review Tribunal for merits review of a non-revocation decision under s 501 is absolute — the Tribunal has no power to extend it — so once that window closes without an application being lodged, judicial review of the underlying merits is effectively foreclosed.
- A detainee who receives a non-revocation letter but takes no steps to seek review, and then delays seeking injunctive relief until the eve of removal, is unlikely to obtain an interim restraining order: the absence of a serious question to be tried and the failure to act expeditiously together weigh decisively against interlocutory relief.
- Courts will apply the statutory duty to remove as a significant factor on the balance of convenience, reinforcing the high bar a detainee faces in halting an imminent removal under s 501.
Why It Matters
This decision reinforces the strict operation of the nine-day merits-review deadline in character-cancellation cases and signals that minor procedural defects in government notices — such as a misdescription of the delivery method — will not ordinarily invalidate a notice or toll the review period where the substantive information (the deadline itself) is plainly communicated. For immigration practitioners, the case is a pointed reminder that the moment a detained client receives a non-revocation letter, the clock is running and there is no margin for delay: the Tribunal window must be treated as jurisdictional and acted upon immediately.
The decision also illustrates the very limited scope for last-minute judicial intervention in removal proceedings once the statutory review pathway has closed. Unless an applicant can identify a jurisdictional error or a separate ground that survives the expiry of the merits-review period, an urgent application to the Federal Court on the eve of deportation will almost certainly fail — and will expose an unrepresented applicant to a costs order.