BFB16 v Minister for Immigration

In the Federal Circuit and Family Court of Australia, Judge Vasta considered the application of BFB16, a non-citizen, for judicial review of a decision made by the Minister for Immigration. BFB16 sought to challenge the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation under section 501(3C) of the *Migration Act 1958* (Cth). The core of the dispute concerned whether the Minister had properly considered the best interests of the child, as required by section 501(3C)(e), when making the decision to refuse revocation.

The primary legal issue before the Court was whether the Minister, in refusing to revoke the visa cancellation, had failed to give adequate consideration to the best interests of the minor child of BFB16, a consideration mandated by section 501(3C)(e) of the *Migration Act*. This required the Court to determine the scope of the Minister's obligation under this provision and whether the material before the Minister, and the Minister's assessment of it, satisfied that obligation.

Judge Vasta reasoned that the Minister's delegate, when considering the revocation of a mandatory visa cancellation, must undertake a two-stage assessment. Firstly, the delegate must consider whether the non-citizen passes the character test. If they do not, the delegate must then consider whether to revoke the cancellation. In the latter stage, the delegate is required to consider the best interests of the child. The Court found that the delegate's decision-making process, as evidenced by the reasons provided, did not demonstrate a proper and adequate consideration of the best interests of the child. Specifically, the reasons did not articulate how the child's best interests were weighed against other relevant considerations, nor did they explain why those interests did not outweigh the grounds for refusing revocation. The Court applied the principles of administrative law, including the requirement for lawful, reasonable, and procedurally fair decision-making, and the specific obligations imposed by section 501(3C)(e) of the *Migration Act*.

The Court ordered that the decision of the Minister to refuse to revoke the visa cancellation be set aside and remitted to the Minister for reconsideration according to law.