Takarua v Minister for Immigration and Citizenship [2025] FCA 1419

At all times up to and including early November 2025, I believed that my revocation request was still active and under consideration by the Department.

I was not informed, verbally or in writing, that my revocation request had been refused, revoked, finalised, or otherwise decided.

I had no notice of any decision under section 501CA and no reason to believe that my application had been resolved.

Because I had no knowledge of any decision and no communication from the Department, I believed I could not lawfully be removed, and that my request was still pending.

I understand that under the Migration Act, removal cannot occur while a valid 501CA revocation request remains undecided, and I relied on this understanding.

1. The Minister's position at the urgent hearing, and since then, has been that on 22 September 2025: (a) a decision was made by a delegate of the Minister not to revoke the cancellation of Mr Takarua's visa; and (b) written notice of that decision was given to Mr Takarua in accordance with s 501G of the Migration Act. The covering letter that the Minister says formed part of that written notice included the following statement:

The Department cannot consider the cancellation of your visa any further. However, you are entitled to apply to the Administrative Review Tribunal (ART) for a merits review of this decision. An application for merits review of the decision must be given to the ART within nine (9) days after the day on which you are taken to have received this letter. The ART has no power to extend this timeframe.

(original emphasis)

1. The reference to nine days reflects the terms of s 500(6B) of the Migration Act.
2. The covering letter also said:

Enclosed is an information sheet about 'How to Apply for Merits Review by the Administrative Review Tribunal', together with two copies of each of the following:

• the decision record and Statement of Reasons that sets out the reasons for the decision (other than non-disclosable information, if any); and
• each source document ('Attachment') considered by the decision maker (other than documents containing non-disclosable information, if any).

NOTE: If you believe that you may not have received a complete set of the above documents, contact the Department as soon as possible.

As you do not have an authorised recipient who can receive documents on your behalf, and as this letter was given to you by hand, you are taken to be notified of the decision when this letter was handed to you.

As you are an unlawful non-citizen in Australia, you are liable to immigration detention and removal from Australia.

(original emphasis)

1. As to legal representation, Mr Takarua says that it was on 4 November 2025 when he first became aware that he was to be removed. He says that at the time he had legal representation. He says that the Minister did not notify his lawyer of his impending removal or 'the alleged service' and that the failure to do so was a denial of procedural fairness.
2. Mr Takarua had received legal assistance from Legal Aid NSW in making representations to the Minister to revoke the cancellation of his visa. On 14 March 2024, a lawyer from Legal Aid NSW sent an email to the Minister's department saying:

We are instructed by Mr Lex William Gene Takarua to request revocation of the mandatory cancellation of his visa. I have attached Mr Takarua's revocation request form.

Mr Takarua submits that having regard to the strength, nature and duration of ties to Australia, and the best interests of five minor children in Australia; there are reasons why the cancellation should be revoked.

Mr Takarua will provide his personal circumstances form at a later date.

Please direct all future correspondence to Mr Takarua.

(emphasis added)

1. Then on 13 June 2024, the lawyer at Legal Aid NSW sent a further email to 'NCCC Revocations' in the following terms:

Dear team,

I hope this finds you well.

I refer to the applicant above. Please see attached signed 956 form confirming appointment only.

I kindly request confirmation if a valid revocation request has been received.

In addition, please provide a copy of Mr Takarua's cancellation file including the cancellation notice, any correspondence, and acknowledgment of receipt of representations about revocation.

(emphasis added)

1. Form 956 takes effect in the context of s 494D(1) of the Migration Act which provides:

If a person (the first person ) gives the Minister written notice of the name and address of another person (the authorised recipient ) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.

(original emphasis)

1. The attached '956 form' stated that Legal Aid NSW was providing assistance with 'a cancellation process'. In response to a question on the form which asked: 'Have you been authorised to receive written communication on behalf of your client(s) in relation to the matter indicated ... ?', the option 'No' was selected. The form also included a declaration that Legal Aid NSW had been appointed by Mr Takarua as 'legal practitioner' and would act on his behalf 'as permitted by law'. There was a declaration by Mr Takarua that Legal Aid NSW had been so appointed.
2. Accordingly, regard to the form and the covering email provides a basis for concluding that the Minister had been informed by Legal Aid NSW that it was acting as Mr Takarua's legal practitioner in an ongoing way in relation to the cancellation process, but Legal Aid NSW was not authorised to receive written communications that were required to be sent to Mr Takarua. That is to say Legal Aid NSW was acting on his behalf in an ongoing way but did not have instructions to accept documents that were required to be provided to Mr Takarua.
3. On 17 June 2024, NCCC Revocations sent the following email in response:

Thank you for your Email, please find attached.

• Notice of visa cancellation under section 501(3A) of the Migration Act 1958.
• Acknowledgement Letter of Revocation Request Received.

1. At the initial hearing on 9 November 2025, the Minister also provided a copy of a letter sent by Legal Aid NSW to the Minister's department dated 4 November 2025. The letter included a request for an undertaking that the Minister not remove Mr Takarua on the basis that he could not be removed whilst he had an ongoing revocation request before the Minister's department. It also included a request for an undertaking that, 'in the event the Department decides not to revoke the cancellation of his visa', Mr Takarua not be removed until he has exhausted his appeal rights. Therefore, it appears from the terms of the letter that, at least at that time, Legal Aid NSW acted for Mr Takarua and that the lawyer with conduct of the matter believed that Mr Takarua's revocation request was still pending.
2. Legal Aid NSW has since stated that they do not represent Mr Takarua in these proceedings. Mr Takarua says that he has a pending application for legal aid in respect of the present proceedings but Legal Aid NSW has not made a decision on his application. He also says that he has a formal referral from the Law Society of NSW to assist him in obtaining legal representation. He says that a private lawyer advised him to seek an adjournment so he could obtain proper legal representation and prepare his case.
3. No issue arises as to the legal capacity of Mr Takarua when it comes to what is required to comply with s 501G in this case.
4. In addition to the factual matters that have been raised in answer to Mr Takarua's application, the Minister also raises an issue as to whether, having regard to the terms of s 476A of the Migration Act, this Court has jurisdiction. The Minister's contention in that regard is explained below.
5. The Minister also submits that the balance of convenience is against relief.
6. As to the test to be applied in deciding whether to continue the injunctive relief, the Minister contends that the grant of an injunction that interfered with the performance of the statutory duty to remove unlawful non-citizens from Australia as soon as practicable was exceptional and required there to be a strong case for the making of the order. However, no such qualification is evident from the reasoning of Gageler CJ, Gordon, Gleeson and Jagot JJ in Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5, where the reasoning in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199 was applied in a case where such relief was sought: see especially MZAPC at [23] citing Lenah Game Meats at [11], [13] (Gleeson CJ). This is not a case where the applicant's claim rests upon a challenge to the validity of a statutory provision where a presumption of validity will generally apply.
7. Consequently, there are two main aspects for determination, namely (a) Mr Takarua's application for an adjournment to seek legal advice; and (b) whether there is a proper basis for the Court to preserve the status quo by continuing to restrain the removal of Mr Takarua from Australia. The two aspects are related because Mr Takarua seeks an adjournment on the basis that he is not removed pending the further hearing of the matter. So, what he seeks is an adjournment on the basis that the existing relief be continued until a further hearing.
8. The following issues arise for interlocutory determination:

(1) Does the Court have jurisdiction to grant the relief sought?

(2) Should there be an adjournment?

(3) Is there an arguable case that Mr Takarua was not given a written notice of the decision made not to revoke the cancellation of his visa as required by s 501G?

(4) Alternatively to (2), is there an arguable case for relief based upon a failure to notify Legal Aid NSW?

(5) Does the balance of convenience favour the continuation of an injunction restraining removal of Mr Takarua from Australia?

1. The Migration Act has detailed provisions as to the original jurisdiction of this Court and the Federal Circuit and Family Court (Division 2) (the Circuit Court) which operate by reference to the statutory concept of a 'migration decision'. One category of migration decision is a 'privative clause decision', a term that is relevantly defined in s 474 as 'a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act'. The reference to 'decision' includes conduct 'preparatory to the making of a decision': s 474(3)(h). It has been held that compliance with the requirement in s 501CA(3)(b) to invite a person to make representations to the Minister about revocation of a decision to cancel a visa that was made under s 501(3A) falls within that statutory terminology: EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; (2019) 273 FCR 508 at [68]‑[71] (Greenwood J), [170] (Rares J) (an aspect not considered on the appeal in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; (2021) 271 CLR 112 at [16] (Kiefel CJ, Gageler, Keane, Edelman and Stewart JJ)). Of significance for the decision by the Full Court in EFX17 was the fact that the requirement imposed upon the Minister to extend the invitation was preparatory to the making of a decision whether to exercise the power conferred upon the Minister by s 501CA(4) to revoke the visa cancellation.
2. In the present case, the Minister submitted that by parity of reasoning, compliance with s 501G was a privative clause decision of a kind that meant that this Court did not have jurisdiction with respect to a challenge to service of written notice under s 501G.
3. In my view, the application of the reasoning in EFX17 to the question whether there has been compliance with s 501G in a case where, as here, there has been a decision under s 501CA(4) leads to the conclusion that it is this Court that has the relevant jurisdiction. That is because, in a case like the present, the required written notice is conduct preparatory to a decision of the Tribunal on review. Decisions by the Tribunal on review of such decisions are within the jurisdiction of the Federal Court: s 476A(1)(b).
4. There are instances in which this Court has considered whether required written notice to satisfy s 501G has been given, albeit after a decision had been made by the Tribunal: Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 193; (2023) 301 FCR 139.
5. Accordingly, I do not accept that this Court does not have jurisdiction to grant relief if there is a proper basis for the grant of constitutionally protected relief on the basis of an arguable case as to whether there has been compliance with s 501G.
6. The alternative claim made by Mr Takarua is to the effect that there was procedural unfairness in the Minister failing to notify Legal Aid NSW of the notice of intention to remove Mr Takarua 'the alleged service, or any intended removal action'. His claim is to the effect that the Minister was required to notify Legal Aid NSW both about the proposed removal and about 'the alleged service', that is the alleged service of documents as required by s 501G. He relies upon both claims to support his application to continue the injunctive relief. The precise nature of those claims was not articulated. This is not surprising given that Mr Takarua was advancing his case as a litigant in person. However, his complaint was clear. He expected his lawyers to be told of the outcome of the representations that he had made for his visa cancellation to be revoked so that they could assist him with the next steps. One step that would have been available would have been to seek review on the merits of the decision in the Tribunal. He also expected his lawyers to be told of his impending removal. Therefore, this must be a claim about the exercise of the statutory duty to remove.
7. A complaint of the first kind concerns the process for notification of a decision, not the process as to the making of the decision. Regard to the expansive terms of s 474(3) of the Migration Act which lists matters that are included within the statutory term 'decision' (and thereby within the definition of 'privative clause decision'), reveals that they do not refer, in terms, to that aspect of the process.
8. As I have explained, in the case of a decision under s 501CA(4), there is an express statutory requirement to be met as to the notification of the decision. It is set out in s 501G. It requires a written notice (that states the specified matters) to be given to the person whose visa cancellation is not to be revoked. It is a requirement to which the terms of s 494D(1) may apply.
9. It appears that Mr Takarua's claim is that in circumstances where he was legally represented there was a requirement (labelled as a requirement of procedural fairness) to inform his lawyer of any decision, especially any decision not to revoke the cancellation of his visa. A claim of that kind is not concerned with whether the statutory requirement to notify 'the person' of the delegate's decision can be met by notifying the person's lawyer. Rather, it is concerned with whether there is some form of obligation on the part of the Minister to notify a lawyer that is known to be acting for a party in respect of a decision to revoke a visa cancellation under s 501CA(4) of that outcome irrespective of whether there is a requirement for notification to be given to the party personally. The notification requirement is expressed in s 501G. On Mr Takarua's case, the failure to notify his lawyers of the decision that had been made deprived him of legal advice about his rights. An obvious matter for advice would have been the availability of the right to seek merits review in the Tribunal. For that failure to support his claim to a continuation of the injunctive relief it would have to be a matter that affected the validity of any notification that has been given of the delegate's decision.
10. Consequently, it seems to me that, as a matter of jurisdiction, Mr Takarua's claim about his legal representation is either a claim about a privative clause decision of the Tribunal (for reasons that have been given) or is not a claim in relation to a migration decision at all, but is a claim that the requirements of s 501G have not been met with the consequence that the duty to remove has not yet arisen.
11. As to jurisdiction in respect of the second aspect of his claim, it concerns the statutory provisions regarding removal. This Court has jurisdiction in respect of claims as to whether, in the circumstances, the duty has arisen.

1. No purpose would be served if Mr Takarua's application was adjourned without a continuation of the interlocutory relief restraining his removal from Australia. Therefore, the real question is whether he should be allowed an adjournment on terms that the relief continues.
2. There are instances where the Court has granted urgent interim relief to protect the jurisdiction of the Court by preserving the status quo for a time to allow an applicant to be able to prepare submissions addressing the substantive criteria for interlocutory relief: see the authorities referred to by Charlesworth J in ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363 at [32]- [35]. However, it seems to me that, in the present case, even allowing for the fact that Mr Takarua acts on his own behalf, we are past that point and there is a need for Mr Takarua to point to some arguable basis for the relief which he now seeks. Mr Takarua has had an opportunity to speak to lawyers and he has been given time to present materials before the Court to support his claims. In the circumstances, he must be able to show sufficient colour of right to final relief in aid of which the interlocutory relief is sought. Which is not to require a detailed formulation of the case. In assessing whether that is so, the Court may take account of the forensic and other difficulties faced by an applicant in seeking urgent relief. However, there must be some arguable basis for final relief that supports the preservation of the status quo.
3. For those reasons, it is necessary to consider whether the matters that Mr Takarua has raised provide an arguable basis for relevant final relief.

1. As has been explained, Mr Takarua says that he did not receive any notification of the delegate's decision not to revoke the cancellation of his visa. He has provided a signed statement to that effect. It is also a matter that he has addressed orally in each of the three hearings. Recognising that it is difficult for him having the conduct of his own case in the circumstances and taking account of his comments to the effect that he has been tired and has had little time, there have been inconsistencies in his account of what occurred. At times he focussed his attention on his claim that the signature on the acknowledgement of receipt was not his signature. At times he seemed to be saying that he was expecting things to be done by his lawyers. Even so, there are matters that lend support to his account, namely:

(1) Mr Takarua appears to have been waiting for the outcome of his representations;

(2) the extent of the materials required to be provided as part of the written notice would be considerable and would appear to be important;

(3) the contents of the covering letter that the Minister says was provided contained information that disclosed the importance of the decision;

(4) the apparent strength of Mr Takarua's desire to remain in Australia and rejoin his partner and children; and

(5) the fact that Mr Takarua had lawyers who he could readily contact.

1. These are all matters that count against the likelihood that Mr Takarua received the written notice yet did not promptly contact his lawyers about those documents. Further, it may be inferred from the terms of the letter dated 4 November 2025 sent by Legal Aid NSW to the Minister's department concerning Mr Takarua's removal that he did not contact his lawyers about having received notice of a decision having been made on whether to revoke the cancellation of his visa.
2. On the other hand, the Minister has produced records that indicate that the written notice was given to Mr Takarua on 22 September 2025. In addition to the written acknowledgement document (with the disputed signature), there is an email from a detainee service officer in which he says that he delivered documents to Mr Takarua in his accommodation unit and that Mr Takarua signed a 'Correspondence Receipt'.
3. In my view, despite these documentary records, there is a triable factual issue as to whether Mr Takarua received the documents on 22 September 2025. Beyond presenting the records and pointing to an aspect of Mr Takarua's written statement that suggested some confusion as to whether he was referring to the written notice or to the later delivery of a notice of intention to remove him from Australia, the Minister did not advance any other submission as to why Mr Takarua's account was so lacking in credibility that it could not give rise to an arguable case on the facts. Significantly for present purposes, the aspects of Mr Takarua's statement that directly addressed the question whether he received the written notice were clear and unambiguous. Any uncertainty was confined to the claims about what he was said to have signed by way of acknowledgement.
4. There is an appointment record relating to a 'status resolution interview' scheduled with Mr Takarua for 22 September 2025. It indicates that a call was placed with Mr Takarua on that date. There is a note 'SRO left NCCC outcome to be delivered by SJ'. Therefore, it is the recollection of the detainee service officer who says that he delivered the documents to Mr Takarua that assumes significance.
5. Further, it is possible to compare the form of signature on the acknowledgement document with other documents produced by affidavit containing Mr Takarua's signature. One such document is the Form 956. Another is the last incoming passenger card signed by Mr Takarua. Those signatures, though different to each other are markedly different to the signature on the acknowledgement document.
6. It follows in my view that there is an arguable basis for a claim that the requirements of s 501G have not been met.

1. As has been mentioned the claim made by Mr Takarua concerning the failure to notify his lawyers was advanced as a failure to afford procedural fairness. As has been explained, his complaint appears to be that the Minister should have told his lawyers that the decision had been made by the delegate of the Minister not to revoke the cancellation of his visa and subsequently should have told them that he was to be removed.
2. As to the facts, the Minister accepts that Legal Aid NSW was not notified of the delegate's decision not to revoke the cancellation of Mr Takarua's visa. The Minister relies upon the terms of the Form 956 which, he says, required notification of the decision not to revoke the visa cancellation to be given to Mr Takarua personally. In that regard, it may be accepted that on the evidence before the Court it is clear that Legal Aid NSW had not been appointed for the purposes of s 494D(1). Therefore, the written notice had to be given to Mr Takarua. However, the terms of the Form 956 were not explicit that there could not and should not have been a communication with Legal Aid NSW.
3. On the evidence, Legal Aid NSW were acting as Mr Takarua's legal representatives and that engagement was known to the Minister. As to the communications sent by Legal Aid NSW, the first email did say that future correspondence should be directed to Mr Takarua. It said that Mr Takarua would provide his personal circumstances form. But things changed when, two months later, there was the further email enclosing the 'Form 956'. It said: 'Please see attached signed 956 form confirming appointment only' (emphasis added). It was a communication to the Minister that Legal Aid NSW had been appointed as Mr Takarua's lawyer for the purposes of 'the cancellation process'. By that time, the cancellation had occurred and Mr Takarua was seeking revocation of the visa cancellation. The email went on to seek information related to that process.
4. The fact that the Form 956 made clear that written notices required by the Migration Act were to be given to Mr Takarua did not necessarily mean that Legal Aid NSW was asking the Minister not to tell them of the outcome. The form contemplated the appointment of a legal representative who was acting for Mr Takarua as to the request for revocation but did not have authority to receive written notices for the purposes of satisfying the requirements of the legislation. Accordingly, in my view, there is a basis to contend that the Minister would recognise the appointment of Legal Aid NSW as Mr Takarua's legal representative and, in addition to delivering documents to Mr Takarua, also inform Legal Aid NSW when a decision was made as part of the cancellation process.
5. As to notice of removal not being given to Legal Aid NSW, the Minister maintained that, by then, Mr Takarua had been given written notice under s 501G and there were no pending applications or proceedings such that the duty to remove arose. It appeared to be the position of the Minister that Legal Aid NSW had been acting in the cancellation process and, as that process had come to an end, Mr Takarua was no longer legally represented.
6. It must be recalled that Mr Takarua is in immigration detention and is seeking to be at liberty in Australia. It may be expected that the principle of legality which is to be applied in construing legislation in Australia would recognise that a right to legal representation is fundamental and is not to be excluded without irresistible clearness. There is no express language in s 501G that would prevent the Minister from informing an appointed legal representative when a decision is made not to exercise the power conferred by s 501CA(4). Equally, there is no statutory requirement to notify 'the person' by informing any appointed legal representative. The same may be said of s 198.
7. Whether the common law will protect the right to legal representation by requiring notification to known lawyers as a condition of the valid exercise of statutory power, especially power affecting the liberty of an individual, is a significant question. There is a principle of statutory construction that a statute conferring power that is apt to affect the interests of an individual is to be exercised in a manner that affords procedural fairness to that individual: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [75] (French CJ., Keifel, Bell, Gageler, Keane, Nettle and Gordon JJ). A principle of that kind, informed as it is by common law expectations as to the way in which laws are to be administered, may extend to require notification of an exercise of power to a known legal representative.
8. As to the decision not to revoke the visa cancellation, this possibly appears to concern the making of a decision by a delegate of the Minister under s 501CA(4) not to revoke the cancellation of a visa on the basis that the making of the decision would include notifying the outcome. For reasons that have been given, claims in respect of a decision of that kind would appear to concern a migration decision the review of which is outside this Court's jurisdiction. As to the duty to remove, in the events which occurred, Mr Takarua's lawyers were aware of the prospect of his removal and where able to write to the Minister.
9. In the result, given the conclusions I have reached in relation to the existence of an arguable case as to whether the written notice required by s 501G, it is not necessary to reach a conclusion as to whether the matters raised by Mr Takarua concerning the notification of Legal Aid NSW give rise to a sufficiently arguable claim within the jurisdiction of this Court to separately sustain the continuation of the injunctive relief (that is, in addition to the issue as to whether written notice as required by s 501G was given to Mr Takarua).

1. It is said that the case advanced by Mr Takarua is weak. For reasons I have given, I would characterise it as a case that depends upon the resolution of conflicting evidentiary accounts.
2. It is said that there are costs of ongoing detention. I accept that to be so. Those costs can be ameliorated by the matter proceeding to an early hearing.
3. Submissions were advanced to the effect that Mr Takarua could litigate his claims from New Zealand and, if he was successful, he could re-enter Australia by applying for a visa as provided for in reg 5.15A(3) of the Migration Regulations 1994 (Cth). However, in the end, it was accepted that there would be uncertainties with that course. In short, it cannot be concluded safely that there would be no material consequence for Mr Takarua's ability to return to Australia if he were to pursue his claim successfully in New Zealand rather than from in Australia.
4. On the other hand, there is the concern of Mr Takarua to remain in Australia with his partner and children. If it is determined that time has not commenced to run then he will be able to bring an application for a merits review in the Tribunal and seek assistance from lawyers in Australia to do so. There is also the issue of hardship to Mr Takarua's partner and children if he is required to be removed in circumstances where, on his case, he will be entitled to seek merits review when he is given proper written notice.
5. On the basis that the order to be made would be until final hearing or further order and therefore would allow the Minister to bring forth further evidence or submissions as to matters not considered on the urgent application as a basis for the injunction to not continue, I am persuaded that the balance favours the grant of the relief sought.

1. For those reasons, I will order the continuation of the injunction until final hearing or further order. I will require Mr Takarua to file and serve a formal originating application by 9 December 2025. Further case management orders can be made when the matter is allocated to a case managing judge. I note that Mr Takarua has a pending application for legal aid. For that reason only, at this stage, I do not make a referral for legal assistance.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.