Dacanay v Minister for Home Affairs & Anor

The applicant, Mr Dacanay, sought judicial review of a decision by the Minister for Home Affairs to refuse to revoke a mandatory visa cancellation under s 501(3C) of the Migration Act 1958 (Cth). The Minister's decision was made on the basis that Mr Dacanay did not pass the character test, as defined in s 501(6) of the Act, due to his criminal convictions. The matter came before Gageler J of the High Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse revocation of the visa cancellation was vitiated by an error of law. Specifically, the Court was required to determine whether the Minister, in considering whether to revoke the cancellation, had failed to take into account a relevant consideration, namely the best interests of a child, as mandated by s 501(6A) of the Act.

Gageler J reasoned that s 501(6A) imposes a positive obligation on the Minister to consider the best interests of a child when deciding whether to revoke a mandatory visa cancellation. His Honour found that the delegate of the Minister, in reaching the decision under review, had failed to adequately consider this mandatory consideration. The delegate's reasons indicated a focus on the applicant's criminal conduct and the risk of recidivism, but did not demonstrate a proper assessment of how the revocation or non-revocation of the visa cancellation would affect the best interests of Mr Dacanay's child. Consequently, the decision was affected by an error of law.

The High Court ordered that the application for judicial review be granted, the decision of the Minister be quashed, and the matter be remitted to the Minister for reconsideration according to law.