AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

The applicants, AIO21 and another, sought judicial review of decisions made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and the second respondent. The dispute concerned the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation under s 501(3C) of the Migration Act 1958 (Cth). The matter was heard by Gageler and Edelman JJ of the High Court of Australia.

The central legal issue before the High Court was whether the Minister, when considering whether to revoke a mandatory visa cancellation under s 501(3C), was required to consider the best interests of children who were not Australian citizens. This question arose in the context of the Minister's obligation under s 501(3C)(c) to consider whether the person's conduct had been such that it would be "in the best interests of the Australian community" to refuse to revoke the cancellation.

The Court reasoned that the phrase "best interests of the Australian community" in s 501(3C)(c) did not extend to the best interests of non-citizen children. Gageler and Edelman JJ held that the statutory language confined the scope of the "Australian community" to persons who are citizens or permanent residents. Therefore, the Minister was not legally required to consider the best interests of non-citizen children when making a decision under s 501(3C). The Court found that the Minister's decision was not vitiated by a failure to consider such interests.

The High Court dismissed the application for judicial review.