Hussein v Minister for Home Affairs & Anor

Bell J of the Federal Court of Australia considered the application of Mr Hussein for judicial review of a decision by the Minister for Home Affairs to refuse to grant him a visa. Mr Hussein sought to challenge the lawfulness of the Minister's decision, which had been made under s 501(3) of the *Migration Act 1958* (Cth).

The central legal issue before the Court was whether the Minister's delegate had properly exercised the power conferred by s 501(3) of the *Migration Act*. Specifically, the Court was required to determine if the delegate had reasonably apprehended the nature and scope of the discretion vested in them, and if the delegate had failed to consider relevant considerations or taken into account irrelevant considerations when making the decision to refuse the visa.

Bell J found that the delegate had failed to properly apprehend the nature and scope of the discretion conferred by s 501(3). The delegate's reasons indicated an erroneous belief that the decision was largely predetermined by the applicant's criminal history, rather than a genuine consideration of whether the applicant passed the character test and whether it was in the best interests of Australia to refuse the visa. The Court applied the principles of administrative law concerning the proper exercise of discretionary powers, including the requirement for a decision-maker to undertake a genuine consideration of the matters before them and to avoid fettering their discretion.

The Court ordered that the decision of the Minister's delegate be quashed and remitted to the Minister for reconsideration according to law.