Federal Court of Australia

Mehau v Minister for Immigration and Citizenship [2026] FCA 803

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the Minister’s costs fixed in the amount of $1,500.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

NEEDHAM J:

1    Mr Danzel Mehau seeks by way of urgent application that I make an order restraining the respondent, the Minister for Immigration and Citizenship, from removing him from Australia at around 9:00am today. He has brought his application urgently after first contacting the Registrar after business hours on Monday evening, and this hearing is being held in the early hours of Tuesday morning.

2    He has provided an affidavit which says that he is being “deported without any knowledge, as [he] was not aware of any information that he was being deported [today]”. Attached to his affidavit is a letter from the Department of Home Affairs dated 30 April 2026 notifying him of the decision not to revoke his visa cancellation made under s 501(3A) of the Migration Act 1958 (Cth). The Minister had determined not to revoke the original decision and so the letter said that Mr Mehau was liable to immigration detention and removal from Australia.

3    The applicant set out a timeline of material facts in his affidavit, which he amended somewhat in his oral submissions. The timeline said that the decision was made on 30 April, which reflects the letter, and that he was told in late May 2026 that he had legal paperwork in the Property section [of Villawood Immigration Detention Centre]. In oral submissions, he said that that took place not long after the decision was made and, to the best of his recollection, he thinks it was early to mid-May, perhaps around 10 or 11 May, that he received the paperwork.

4    The Minister noted that after 30 April, Department officers had attempted to deliver the notification to Mr Mehau but were unable to do so, and so made a determination to send the notice of non-revocation decision by post. The original letter was not updated to reflect that it was to be served by post. Instead, it reflected that it would be delivered by hand and was not updated to reflect the delivery method.

5    Under the heading, “Review Rights”, the letter set out that any application for merits review of the decision must be lodged with the Administrative Review Tribunal within nine days after the day on which the applicant is taken to have received the letter. The Tribunal has no power to extend this timeframe. The next paragraph says, “As this letter was given by hand, you are taken to have been notified of the decision when this letter was handed to you.”

6    Mr Mehau said he had assumed the letter was required to be formally served upon him and when he was notified late last week of his imminent removal, he was under the impression that the nine days had not commenced to run.

7    The Minister is represented at this hearing by Mr Cunynghame, who relies on s 494E(4) of the Migration Act, which says there may be substantial compliance with the content requirements (s 494E(1)(b)) even if there is an error, omission, misstatement or misdescription in the document. He also relied upon the decision in Du v Minister for Immigration and Citizenship [2026] FCA 758, where an error in the notice handed to Mr Du in that decision specified a nine-day period but did not explain that if that period ended on a weekend day, then there was further time for the applicant to make an application (at [54]). That notice was considered to be in substantial compliance with the content requirements and Markovic J cited analogous facts in BHRR v Minister for Immigration and Citizenship (No 2) [2026] FCA 250 at [54] (Wheelahan J) and distinguishable facts in VRRQ v Minister for Immigration and Citizenship [2026] FCA 77 at [70] (Button J).

8    The Minister submitted that there was no serious question to be tried because the applicant is out of time to make an application, and that there is no ability in the Tribunal to extend that time. Whilst the Minister recognised that the letter contemplated service by hand, but indeed was service by post, he said that that does not matter because by somewhere in early to mid-May, but certainly by 16 May when the Department noted that the applicant had the relevant letter, the applicant was on notice of the time period.

9    The applicant was not able, understandably given that he appeared in person, to make submissions as to the ultimate strength of his case and he relied on submissions as to a failure of service.

10    I have considered the matters raised and reviewed the reasons for the non-revocation, as well as the circumstances in which the applicant has obtained notification of the delegate’s decision and thus the nine-day requirement. The letter, which the applicant admitted he had received some six weeks ago, set out clearly the nine-day hard timeframe for the making of an application to the Tribunal. If his evidence is accepted that he received the letter then, and there is no reason it should not be, it does seem to me that there is no ability for any merits review to be undertaken. There is substantial compliance with the requirements and no substantial prejudice in terms of s 494E(2)(b), in that the nine days requirement was clearly stated.

11    The Minister made submissions on the balance of convenience. I have considered them and, given my decision on the lack of a serious question to be tried, I will only set them out briefly.

12    The Minister relied on the statutory duty to remove the applicant where a non-revocation decision has been made, and also on the frustration of the Migration Act (BHRR v Minister for Immigration and Citizenship [2025] FCA 1369 at [43] (Wheelahan J) is relevant). He also noted that the applicant had not acted expeditiously to challenge the delegate’s decision, either by application to the Tribunal or in relation to the removal decision which he said he was notified of recently.

13    Given my finding that there is no serious question to be tried because of my finding on substantial compliance and because the nine days after the applicant received the notification have expired without an application to the Tribunal, the application for an interim restraining order or relief under s 39B of the Judiciary Act 1903 (Cth) is refused.

14    The respondent made an application for his costs, in a fixed sum of $1,500. I order that the applicant pay the respondent’s costs in that sum.

Associate:

Dated:    23 June 2026