Khan v Minister for Home Affairs

Khan (the applicant) sought judicial review of a decision by the Minister for Home Affairs (the respondent) to refuse to grant him a visa. The applicant had been convicted of a criminal offence and was therefore subject to mandatory visa cancellation under section 501(3)(c) of the *Migration Act 1958* (Cth). The applicant argued that the delegate who made the decision to refuse his visa had failed to consider relevant considerations and had taken into account irrelevant considerations, thereby breaching the *Administrative Decisions (Judicial Review) Act 1977* (Cth). The matter came before Egan J in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court had to determine if the delegate had failed to consider the applicant's personal circumstances, including his rehabilitation and prospects of reoffending, as required by the non-refoulement obligations under international law, and whether the delegate had improperly taken into account the applicant's criminal record without adequately weighing it against other relevant factors.

Egan J found that the delegate had failed to undertake a proper balancing exercise as required by the *Migration Act* and relevant ministerial directions. The delegate's decision was vitiated by a failure to give sufficient weight to the applicant's personal circumstances and his prospects of rehabilitation, which were central to the assessment of whether the visa refusal was in the public interest. The Court held that the delegate had erred in law by failing to adequately consider the applicant's submissions regarding his rehabilitation and the potential consequences of visa refusal under international law.

The Court ordered that the decision of the delegate be set aside and remitted to the respondent for reconsideration according to law.