Lesianawai v Minister for Immigration and Border Protection

Lesianawai brought a judicial review action against the Minister for Immigration and Border Protection, challenging the decision of the Administrative Appeals Tribunal (the Tribunal) to cancel his visa on character grounds. The applicant argued that the Tribunal failed to properly consider whether cancelling his visa was in the best interests of his young son, in accordance with Direction No. 55. The court was required to determine whether the Tribunal made a jurisdictional error by failing to make the required finding regarding the best interests of the applicant's child, and whether the Tribunal misapplied the law by answering a narrower question than that posed by s 501(2) of the Migration Act 1958 (Cth).

The court found that the Tribunal's reasoning indicated that it had indeed made the required finding regarding the best interests of the applicant's son, but ultimately determined that the protection of the Australian community from the risk of harm caused by the applicant re-offending outweighed those interests. The Tribunal did not make a jurisdictional error in its assessment of the relevant considerations, nor did it misapply the law by answering a narrower question than that posed by s 501(2). The court concluded that the Tribunal's consideration of the best interests of the applicant's son was sufficient, and that the Tribunal did not impermissibly fetter its discretion.

The court quashed the decision of the Tribunal and issued a writ of mandamus directing the Tribunal to determine the applicant's application in accordance with law. The Minister was ordered to pay the applicant's costs, and the professional fees charged by the applicant's counsel were to be paid directly to the applicant's counsel.