Federal Court of Australia

Vanu v Minister for Immigration and Citizenship [2026] FCA 1581

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 14 October 2026 is refused.

2.    Costs are reserved.

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

REASONS FOR JUDGMENT

HORAN J:

1    This is an urgent interlocutory application to restrain the applicant’s removal from Australia until the hearing and determination of his application for an extension of time to lodge an application for review of a decision of the Administrative Review Tribunal, which affirmed a decision not to revoke the cancellation of the applicant’s Subclass 444 Special Category (Temporary) visa. The interlocutory application was filed on 14 October 2026, and has been referred to me as the general duty judge.

2    The applicant has received a Notice of Intention to Remove from Australia issued by the Australian Border Force stating that it was anticipated that he would be removed to New Zealand on or after 14 October 2026. The first respondent (the Minister) has advised that the applicant’s removal is currently scheduled to take place on 5 November 2026.

3    For the reasons set out below, the application for an interlocutory injunction is refused.

BACKGROUND

4    The applicant is a citizen of New Zealand who has resided in Australia since 2010. On 15 May 2024, his Special Category visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth), following his conviction of an offence of attempted armed robbery for which he was sentenced to a term of imprisonment of 28 months.

5    On 21 May 2026, a delegate of the Minister refused to revoke the visa cancellation decision under s 501CA(4) of the Migration Act.

6    On 12 August 2026, the Tribunal affirmed that decision: Vanu v Minister for Immigration and Citizenship [2026] ARTA 1624 (T).

7    After considering the applicable Ministerial direction (Direction No 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA), the Tribunal was not satisfied that there was another reason why the cancellation should be revoked.

(a)    The Tribunal considered that the applicant’s criminal offending and other conduct were very serious, and found that there was a “moderate to high risk” that the applicant might engage in further criminal or other serious conduct: T [65]–[66], [121]. Accordingly, the protection of the Australian community weighed heavily against revoking the cancellation decision: T [67], [121]. Similarly, the Tribunal gave substantial weight to the expectations of the Australian community as weighing strongly against revocation: T [99], [121].

(b)    In considering the strength, nature and duration of the applicant’s ties to Australia, the Tribunal had regard to the length of his residence in Australia and his family members residing in Australia: T [69]–[80]. The Tribunal placed significant weight on this consideration in favour of revoking the cancellation decision: T [80], [122].

(c)    The Tribunal had regard to the best interests of minor children in Australia, being two of the applicant’s brothers and a nephew: T [81]–[92]. Having regard to the nature of his relationship with those relatives, the Tribunal gave this consideration limited weight in favour of revoking the cancellation decision: T [92], [122].

(d)    The Tribunal took into account other non-primary considerations, including the legal consequences of the decision: T [100]–[105]. The Tribunal noted that the applicant had not raised any non-refoulement claims in relation to New Zealand or elsewhere. The Tribunal had regard to the fact that the applicant would remain an unlawful non-citizen and would be liable for detention and removal from Australia, and that he would be indefinitely excluded from Australia under the special return criteria: Migration Regulations 1994 (Cth), Sch 5, cl 5001(c). The Tribunal referred to the Minister’s submission that such matters should be given neutral weight, in circumstances where they were “the intended purposes of the statutory scheme”: T [104]; cf. Le v Minister for Immigration and Citizenship [2026] FCA 774 at [37]–[52], [63] (Lee J). However, the Tribunal considered that the legal consequences of the decision had “some weight in favour of revocation”: T [105], [123].

(e)    In relation to the extent of any impediments the applicant may face if removed, the Tribunal accepted that he would face emotional, practical and financial difficulties in adjusting to life in New Zealand, but was satisfied that he would have access to services and support from extended family members: T [113]–[114]. Accordingly, the Tribunal gave this consideration some, albeit limited, weight in favour of revocation: T [114], [123].

(f)    The Tribunal weighed all of the considerations in favour of and against revocation of the cancellation decision: T [120]–[125]. In doing so, the Tribunal had regard to the principles in paragraph 5.2 of Direction No 110, including that Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age: T [124]; Direction No 110, para 5.2(6). In this regard, the Tribunal was clearly cognizant of the period for which the applicant had resided in Australia: T [2], [70], [78]–[79]. This was balanced against other principles in relation to the seriousness of the harm that would be caused if the applicant’s conduct were to be repeated: T [43], [64], [124]; Direction No 110, paras 5.2(7), 8.1.2.

APPLICATION FOR EXTENSION OF TIME

8    By an application filed on 2 October 2026 pursuant to r 31.23 of the Federal Court Rules 2011 (Cth), the applicant sought an extension of time within which to lodge an application for review of the Tribunal’s decision under s 477A(2) of the Migration Act.

9    The application was accompanied by an affidavit of the applicant sworn on 30 September 2026. That affidavit sets out the applicant’s explanation for the delay in filing the application. However, it does not identify or address the proposed grounds on which the Tribunal’s decision is challenged.

10    The applicant filed a draft originating application for review of a migration decision, which seeks orders setting aside the Tribunal’s decision and remitting the matter to the Tribunal to be determined according to law. The grounds of the proposed application are unparticularised, alleging that the Tribunal’s decision was affected by jurisdictional error and that the applicant relies on the matters in his affidavit “and will provide further particulars of the alleged jurisdictional error as required by the Court”.

11    The applicant is not legally represented. He deposed in his affidavit that, several days after the Tribunal’s decision, he suffered an injury in an altercation while he was in detention, which required out-patient treatment at a hospital emergency department. He nevertheless continued to prepare documents to commence judicial review proceedings. On 18 September 2026, the applicant unsuccessfully attempted to lodge such documents through the Court’s eLodgment system. However, those documents were not accepted for filing, on the basis that they were out of time (having not been filed within 35 days of the Tribunal’s decision) and did not otherwise comply with the Rules. On 2 October 2026, the applicant proceeded to file the present application for an extension of time.

12    In response to the interlocutory application, the Minister relies on an affidavit of Alexandra Clare O’Grady affirmed on 21 October 2026, which exhibits medical records for the applicant in respect of the period following the Tribunal’s decision.

CONSIDERATION

Applicable principles

13    In order to obtain an interlocutory injunction, the applicant is required to demonstrate that there is a serious question to be tried as to his entitlement to relief which is sufficient to justify the preservation of the status quo pending the hearing and determination of the proceeding, and that the balance of convenience favours the grant of an injunction: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J), [65]–[72] (Gummow and Hayne JJ). These are related inquiries, and each should not be considered in isolation from the other: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [67] (Dowsett, Foster and Yates JJ). It may also be relevant to consider whether or not damages would be an adequate remedy for any injury that might be suffered by the applicant if an injunction were not granted, although that factor does not often feature prominently in migration cases where an applicant is seeking to restrain his or her removal from Australia.

Serious question to be tried

14    The applicant must establish a prima facie case for the grant of an extension of time under s 477A(2) of the Migration Act. The question on such an application is whether it is necessary in the interests of the administration of justice to make an order to extend time, having regard to all of the facts and circumstances: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ). In addition to the explanation for and circumstances of the relevant delay in commencing the proceeding, the Court may consider the prospects of success of the substantive grounds of the proposed application, together with any prejudice to the Minister or to the public interest that might weigh against the grant of an extension of time.

15    At least in cases where the delay in filing the application is relatively short or can be explained, the prospects of obtaining an extension of time under s 477A(2) of the Migration Act will often overlap, if not coalesce, with the inquiries governing the grant of interlocutory injunctive relief. That is, if an applicant can show a prima facie case in relation to his or her proposed application for review and that the balance of convenience favours the grant of an interlocutory injunction, there will usually be a serious question to be tried on the application for an extension of time under s 477A(2), unless there were some overwhelming discretionary factor weighing against the grant of such an extension.

16    For present purposes, I accept that the applicant has sufficiently explained the short delay in commencing this proceeding. The applicant does not suggest that he was unaware of his right to seek judicial review of the Tribunal’s decision or the time within which an originating application was required to be filed. On the contrary, he stated in his affidavit that, after his injury had been treated and he was discharged from the hospital, he “continued attempting to prepare documents to commence judicial review proceedings” and “was aiming to lodge the documents before the applicable filing deadline”. Nor did he seek to rely on his injury as a justification for having failed to file his application within the 35-day period. Nevertheless, he attempted to file an application for review within two days after the expiry of the 35-day period and, when that application was not accepted for filing, his extension of time application was filed within two weeks. Having regard to the difficulties faced by the applicant in preparing his application without legal assistance in the detention environment, I would not regard the length of the delay as militating against the grant of an extension of time.

17    However, the application does not identify or particularise the grounds of judicial review on which the applicant relies.

18    At the hearing of the interlocutory application, the applicant identified two matters of concern arising from the Tribunal’s decision that were advanced as possible grounds of review. First, the applicant contended that the Tribunal had inappropriately referred to or given weight to his juvenile offending, which was said to have been contrary to Direction No 110. Secondly, the applicant contended that the Tribunal had inappropriately “dismissed” evidence given by members of his family.

19    In relation to the first matter, the Tribunal had regard to the applicant’s prior criminal history as a juvenile at several points in its reasons. The juvenile offending was referred to in the course of the sentencing remarks for the offence by reason of which the applicant had a “substantial criminal record” within the meaning of s 501(3A), (6)(a) and (7)(c) of the Migration Act: T [28]. Further, in considering the nature and seriousness of the applicant’s offending and other conduct, the Tribunal had regard to the applicant’s convictions in the Melbourne Children’s Court: T [32]–[33], [37], [42]. The Tribunal also referred to the circumstances of the applicant’s youth detention in the course of considering the likelihood of him engaging in further criminal or other serious conduct: T [50], [52], [54], [56], [57], [61], [66].

20    In so far as the applicant was convicted of offences in the Melbourne Children’s Court, the Tribunal was not precluded from having regard to those convictions when applying Direction No 110: see Minister for Immigration and Citizenship v QLZD [2026] FCA 590 at [24] (Wheelahan J); cf. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136; Lesianawai v Minister for Immigration Citizenship and Multicultural Affairs (2024) 281 CLR 1.

21    In relation to the second matter raised by the applicant, the Tribunal directly addressed the evidence from the applicant’s father and siblings in the course of assessing his likelihood of reoffending, and in considering the strength, nature and duration of his ties to Australia: T [58], [71]–[73], [75], [76], [78]. Far from “dismissing” that evidence, the Tribunal acknowledged that the applicant’s father and siblings had provided evidence of their intentions to support the applicant: T [58]. The Tribunal accepted oral evidence given by the applicant’s sisters that his immediate family members were willing to provide him with support and assistance, subject to some reservations about their level of awareness of the applicant’s rehabilitative needs: T [58], [62]. The Tribunal nevertheless placed significant weight on the applicant’s strong family ties in Australia as a factor in favour of revocation of the cancellation decision: T [80]. While the Tribunal ultimately concluded that this was outweighed by the considerations against revocation, it cannot be said that the Tribunal erred by disregarding the representations made and evidence given by the applicant’s family members.

22    Further, the Tribunal also took into account evidence from the applicant’s sisters and letters of support from his younger brothers when considering the best interests of minor children in Australia, and referred to his sisters’ oral evidence when considering the extent of the impediments that may be faced by the applicant if he is removed to New Zealand: T [84]–[86], [88], [111], [113].

23    In his oral submissions, the applicant flagged a possible argument that he was denied procedural fairness. However, apart from the matters set out above, he did not identify any particular aspect of unfairness arising from the Tribunal’s decision or the process before the Tribunal.

24    Given that the applicant is not legally represented, I have also considered whether the Tribunal’s reasons for decision might reveal any obvious or self-evident legal error: see Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCA 978 at [10]–[11] (Wheelahan J), referring to MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [100] (Mortimer J); COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J). However, I am unable to identify any patent error in the Tribunal’s decision that might be capable of being made the subject of an application for review in this Court.

25    In such circumstances, the applicant has not demonstrated a prima facie case for the grant of an extension of time under s 477A(2) of the Migration Act. In the absence of any arguable ground of review of the Tribunal’s decision, there is no serious question to be tried as to whether it is necessary in the interests of the administration of justice to make an order to extend the time within which the applicant may seek review of that decision.

Balance of convenience

26    The Minister noted that the applicant’s removal from Australia is the subject of a statutory duty imposed by s 198(2B) of the Migration Act. The Minister submitted that, in so far as the Court is required to consider which of the grant or the refusal of an injunction carries the “lower risk of injustice” if it should turn out to be wrong (in the relevant sense), the grant of an injunction involved a “risk of injustice” in the frustration of the legislative scheme or the interruption of the course otherwise contemplated by the law: see CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [14]–[15] (Mortimer J); BKN25 v Commonwealth of Australia [2026] FCA 350 at [16]–[17] (Kennett J).

27    Nevertheless, as Kennett J acknowledged in BKN25 at [14], the statutory duties to remove unlawful non-citizens from Australia can accommodate the powers of this Court (and other courts with relevant jurisdiction) to grant interlocutory relief in order to protect the integrity of its processes and ensure the effective exercise of its jurisdiction: see Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; (2025) 99 ALJR 486 at [4], [25], [29], [35]–[37], [40] (Gageler CJ, Gordon, Gleeson and Jagot JJ); MCVN v Minister for Immigration and Citizenship [2025] FCA 1271 at [48] (Horan J). While the impact of an interlocutory injunction on the enforcement of public duties under the Migration Act is relevant to the balance of convenience, this does not necessarily require an applicant to demonstrate a “strong case” before interlocutory relief will be granted in order to preserve the subject-matter of the proceeding or the utility of the final relief that is sought: SXHR v Minister for Immigration and Citizenship [2026] FCA 904 at [15]–[17], [33] (Stellios J).

28    The Minister also refers to the “significant [financial] cost to the Commonwealth involved in keeping the applicant in detention”. This submission was advanced in a general sense, without any specific evidence about the quantum of such costs. I accept that such costs can be relevant, along with any undertaking as to damages: see e.g. BKN25 at [55] (Kennett J); SXHR at [34] (Stellios J). In the present case, however, I do not place significant weight on this factor.

29    The applicant’s removal from Australia to New Zealand will not destroy the subject matter of this proceeding nor completely remove the utility of any final relief. The applicant will be able to continue the proceeding from outside Australia if he chooses to do so, although he may face some practical difficulties in engaging with court processes from overseas, particularly if he remains without legal representation: compare Ratapu v Minister for Immigration and Citizenship [2026] FCA 1330 at [40] (Hespe J); cf. SXHR at [38]–[40] (Stellios J). In the event that he were ultimately successful (both in obtaining an extension of time and in the grant of final relief), the matter would be remitted to the Tribunal, giving rise to a possibility that the cancellation decision might potentially be revoked. Although the Special Category visa previously held by the applicant would not permit him to re-enter Australia, such an outcome would arguably remove any difficulties that might otherwise be presented by the special return criteria to the grant of a further visa, including a further Special Category visa: see Migration Act, s 32(2); Migration Regulations, reg 5.15A, Sch 5, cl 5001(c).

30    In such circumstances, particularly having regard to the weak prospects of success on the application for an extension of time, I consider that the balance of convenience does not favour the grant of an injunction in the present case.

CONCLUSION

31    The applicant has not demonstrated that there is a serious question to be tried on his application for an extension of time to seek review of the Tribunal’s decision. Further, the balance of convenience does not favour the grant of an injunction to restrain the applicant’s removal in accordance with the provisions of the Migration Act.

32    The interlocutory application is refused.

Associate:

Dated:    23 October 2026