Background
Stanley Lei Vanu, a New Zealand citizen who had lived in Australia since 2010, had his Subclass 444 Special Category visa mandatorily cancelled in May 2024 following his conviction for attempted armed robbery and a 28-month prison sentence. A ministerial delegate declined to revoke the cancellation, and the Administrative Review Tribunal affirmed that decision after weighing Mr Vanu’s offending and risk of further misconduct against his family ties and other considerations favouring revocation.
Mr Vanu sought an extension of time to apply for judicial review of the Tribunal’s decision and urgently asked the Federal Court to restrain his scheduled removal to New Zealand pending determination of that application. Acting without legal representation while in immigration detention, he attempted to lodge review documents two days after the 35-day deadline; after those documents were rejected as late and noncompliant, he filed the extension application within two weeks. Although he had also suffered an injury after the Tribunal’s decision, he did not rely on that injury to justify missing the deadline.
The Court’s Holding
Justice Horan refused the interlocutory injunction. The Court accepted that the short delay did not weigh against an extension, given Mr Vanu’s prompt filing attempts and the difficulties he faced preparing documents without legal assistance in detention. But neither his draft application nor his affidavit identified a particularised ground of jurisdictional error.
The two possible grounds raised at the hearing were not arguable. The Tribunal was permitted to consider Mr Vanu’s juvenile convictions under Direction No 110, and its reasons showed that it considered rather than disregarded his family’s evidence. The Court also found no apparent procedural unfairness or other patent legal error. Mr Vanu therefore failed to establish a prima facie case for an extension of time or a serious question to be tried. The balance of convenience also weighed against an injunction because his prospects were weak and removal would not prevent him from continuing the proceeding from New Zealand or eliminate all utility in possible final relief.
Key Takeaways
- A short and reasonably accounted-for filing delay may not count against an extension of time, but an applicant must still identify an arguable ground of judicial review.
- Direction No 110 did not prevent the Tribunal from considering convictions recorded in the Children’s Court when assessing offending and future risk.
- Removal from Australia does not necessarily destroy the utility of migration-review proceedings where the applicant can continue them from overseas and successful review could still lead to reconsideration.
Why It Matters
The decision illustrates that urgent relief against removal depends on more than practical hardship or a modest filing delay. Even for a self-represented detainee, the Court must be able to identify an arguable legal error in the underlying administrative decision before preserving the status quo through an injunction.
It also confirms that the statutory duty to remove an unlawful non-citizen can yield to interlocutory relief needed to protect the Court’s processes, but remains relevant to the balance of convenience. Here, the absence of an arguable review ground and the continuing possibility of litigating from New Zealand made restraint of removal unwarranted.