Foster v Min for Customs

Foster (the applicant) sought judicial review of a decision by the Minister for Customs (the respondent) to refuse to grant a licence to import certain goods. The applicant had been convicted of a serious offence involving the importation of prohibited imports. The Minister's decision was based on the applicant's criminal record, specifically the conviction for importing prohibited imports, which was considered relevant to the applicant's suitability to hold an import licence.

The central legal issue before the High Court of Australia was whether the Minister's decision to refuse the licence was vitiated by an error of law, specifically whether the Minister had taken into account an irrelevant consideration or failed to take into account a relevant consideration. The applicant argued that the Minister had improperly fettered his discretion by treating the previous conviction as a bar to the grant of a licence, rather than as one factor among others to be considered.

The High Court, in a joint judgment, held that the Minister was entitled to consider the applicant's criminal history, including the conviction for importing prohibited imports, as a relevant factor when assessing the applicant's suitability to hold an import licence. The Court found that the Minister had not fettered his discretion; rather, he had properly exercised it by weighing the applicant's past conduct against the public interest in granting a licence. The Court emphasised that the Minister's duty was to consider all relevant factors, and the applicant's criminal record was undeniably relevant to the assessment of whether granting a licence would be in the public interest.

The High Court dismissed the application for judicial review.