Fernandez v Minister for Immigration and Border Protection & Anor

The applicants, Mr. Fernandez and others, sought judicial review of decisions made by the Minister for Immigration and Border Protection and the second respondent, concerning their immigration status. The dispute centred on the lawfulness of the Minister's decision to refuse to revoke a deportation order made against Mr. Fernandez, and the subsequent detention of the applicants. The matter came before the High Court of Australia.

The primary legal issue before the High Court was whether the Minister's refusal to revoke the deportation order was vitiated by an error of law, specifically a failure to consider relevant considerations or an improper exercise of power. A related issue concerned the lawfulness of the applicants' detention, which was contingent on the validity of the deportation order.

The Court considered the scope of the Minister's power under s 499 of the *Migration Act 1958* (Cth) to revoke a deportation order. It was held that the Minister's discretion to revoke such an order is not unfettered and must be exercised in accordance with the law. The Court found that the Minister had failed to properly consider the submissions made by Mr. Fernandez regarding his rehabilitation and changed circumstances, which were relevant considerations for the exercise of the revocation power. This failure amounted to an error of law, rendering the refusal to revoke the deportation order unlawful.

Consequently, the High Court made orders quashing the decision of the Minister to refuse to revoke the deportation order and declared that the applicants were unlawfully detained.