Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Federal Court was asked to review the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’ refusal to revoke a decision cancelling the visa of an Irish-born applicant who has lived in Australia since he was 13 months old. The applicant had been sentenced in 2016 to a term of imprisonment for six charges of indecent acts with a child, and his visa was cancelled in 2018 on the basis of his criminal record. After various representations, the Minister decided in 2020 and again in 2021 not to revoke the visa cancellation, which would result in the applicant being returned to the Republic of Ireland. The applicant challenged the Minister’s decisions on judicial review grounds, arguing that the Minister had failed to take into account relevant considerations, including the fact that the applicant had been diagnosed with motor neurone disease.

The court was required to determine whether the Minister had erred in law in refusing to revoke the visa cancellation. The applicant argued that the Minister had failed to take into account relevant considerations, including the fact that the applicant had been diagnosed with motor neurone disease. The Minister submitted that he had considered the relevant Direction and that there was no other reason to revoke the visa cancellation. The court had to decide whether the Minister’s failure to take into account the applicant’s motor neurone disease diagnosis constituted an error of law warranting the setting aside of the Minister’s decision.

The court held that the Minister had failed to take into account the applicant’s motor neurone disease diagnosis, which was a relevant consideration in deciding whether to revoke the visa cancellation. The court found that the Minister’s failure to take into account this specific circumstance constituted an error of law. The court also noted that the Minister had not argued against the materiality of this error. Therefore, the court set aside the Minister’s decision and ordered that a writ of certiorari be issued quashing the decision and a writ of mandamus be issued requiring the Minister to determine the question of revocation according to law. The court made no order as to costs, given that the applicant had not succeeded on most of his arguments.