McLachlan v Assistant Minister for Immigration and Border Protection

1. The application is dismissed.
2. The applicant pay the respondent's costs, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE APPLICATION 1 Mr McLachlan applies for an extension of time within which to challenge a decision of the Minister not to revoke a visa cancellation decision.

FACTUAL AND PROCEDURAL BACKGROUND 2 Mr McLachlan is a citizen of New Zealand having been born in that country on 8 August 1994. He first arrived in Australia on 4 February 2008 and was granted a Class TY Subclass 444 Special Category (Temporary) visa. Mr McLachlan was granted further Subclass 444 visas on 24 January 2009 and 29 May 2011 (visa). 3 Between 27 July 2010 and 26 July 2012, Mr McLachlan was convicted of various offences committed as a juvenile, including assault occasioning actual bodily harm. 4 On 13 December 2012, Mr McLachlan was convicted of larceny and sentenced to imprisonment for 8 months suspended on entering a bond. 5 On 29 August 2013, Mr McLachlan was convicted of the offence of larceny and was sentenced to 8 months' imprisonment, with a non-parole period of 5 months. 6 On 18 October 2013, Mr McLachlan was convicted of aggravated breaking and entering for which he was sentenced to imprisonment for 2 years, with a non-parole period of 12 months. 7 On 10 February 2015, Mr McLachlan's visa was cancelled by a delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth). Mr McLachlan was advised of the cancellation of his visa by letter from the Department of Immigration and Border Protection dated 10 February 2015, which also advised him that he had an opportunity to request that the decision to cancel his visa be revoked. The letter further advised Mr McLachlan that s 501CA(4) of the Migration Act allowed him to make representations about possible revocation of the visa cancellation decision on the grounds that he passed the character test, or that there was another reason why the decision should be revoked. The letter also enclosed a copy of Direction No 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, made by the Minister pursuant to s 499 of the Migration Act and advised Mr McLachlan that he should address each paragraph in Pt C that was relevant to his circumstances. 8 On 2 March 2015, Mr McLachlan lodged with the Department a request that the Minister revoke the mandatory cancellation of his visa, and provided reasons as to why the original decision should be revoked. 9 On 19 March 2015, Mr McLachlan was convicted of breaking and entering, for which he was sentenced to 2 years' imprisonment, with a non-parole period of 12 months. 10 On 14 and 27 July 2016, an officer of the Department wrote to the applicant advising that the Department had received information which might be taken into account when making the decision whether to revoke the decision to cancel his visa under s 501CA of the Migration Act. The letters set out the information and invited his comments on the information. 11 On 28 September 2016, Mr McLachlan was convicted in the New South Wales Burwood Local Court of 'Cause harm to Commonwealth official' and was sentenced to a term of imprisonment of 7 months. 12 On 9 December 2016, another officer of the Department wrote to Mr McLachlan advising him that the Department had information which might be taken into account when making a decision whether to revoke the decision to cancel his visa, including the sentencing remarks of the New South Wales District Court on 19 March 2015, and a report from the New South Wales Department of Corrective Services dated 25 October 2016 in relation to his conviction on 28 September 2016 (copies of which were enclosed), and inviting his comments on this information. 13 On 24 January 2017, Mr McLachlan provided further information to the Department, including information from his mother, Ms Ana Head, supporting Mr McLachlan's request that the decision that his visa be cancelled be revoked. 14 On 25 January 2017, Mr McLachlan faxed a letter to the Department, together with other documents, including a Personal Circumstances Form. 15 On 23 February 2017, the Assistant Minister for the Department made a decision pursuant to s 501CA(4) of the Migration Act not to revoke the decision to cancel Mr McLachlan's visa. 16 By letter dated 23 February 2017, the Department advised Mr McLachlan of the Assistant Minister's decision not to revoke the cancellation of his visa, and provided him with copies of the decision, the Assistant Minister's Statement of Reasons, and the attachments to that Statement. 17 On 29 May 2017, Mr McLachlan lodged electronically with this Court an application for extension of time and leave to appeal. Under the heading of 'Application for extension of time', Mr McLachlan states that he applies for an extension of time to seek leave to appeal, and that the grounds of the application are set out the accompanying affidavit. 18 By an affidavit of Mr McLachlan dated 18 May 2017 (Mr McLachlan's affidavit), Mr McLachlan provided reasons why he was not able to comply with the 35 day time limit, and reasons why he believes his application has merit. 19 On 20 June 2017, the Court made programming orders, including that by 4.00pm on 15 August 2017, Mr McLachlan should file and serve any amended application giving complete particulars of each ground of review, and any affidavit containing any additional evidence upon which Mr McLachlan proposes to rely relevant only to the grounds of review. 20 Mr McLachlan has not filed and served any amended application or any further affidavit.