Minister for Immigration and Border Protection v EFX17

The Minister for Immigration and Border Protection (the Minister) appealed to the High Court of Australia against a decision of the Full Federal Court. The dispute concerned the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation under s 501(3)(c) of the Migration Act 1958 (Cth) in relation to a non-citizen, EFX17. The Full Federal Court had found that the Minister's decision was vitiated by jurisdictional error.

The central legal issue before the High Court was whether the Minister, when considering whether to revoke a mandatory visa cancellation under s 501(3)(c) of the Migration Act, was required to consider the best interests of children in accordance with s 501(3)(c)(ii) of the Act. This required the Court to interpret the scope and application of the phrase "best interests of children" within the context of the Minister's power to revoke a visa cancellation.

The High Court held that the Minister was not required to consider the best interests of children when exercising the power to revoke a mandatory visa cancellation under s 501(3)(c) of the Migration Act. Their Honours reasoned that the statutory language of s 501(3)(c)(ii) indicated that the consideration of the best interests of children was a prerequisite for the *imposition* of a mandatory visa cancellation, not for its *revocation*. The Court distinguished between the different stages of the visa cancellation process, concluding that the power to revoke was a separate and distinct power from the power to cancel.

Consequently, the High Court allowed the Minister's appeal, setting aside the order of the Full Federal Court. The Court found that the Minister's decision to refuse to revoke the visa cancellation was not affected by jurisdictional error.