Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery

The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and another party 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 grant a visa to Mr Montgomery, a New Zealand citizen, under s 501(1) of the *Migration Act 1958* (Cth) (the Act). The Minister had cancelled Mr Montgomery's visa under s 501(3)(c)(i) of the Act, which requires cancellation if the person does not pass the character test. Mr Montgomery had been convicted of a criminal offence.

The central legal issue before the High Court was whether the Minister, when exercising the power to refuse to grant a visa under s 501(1) of the Act, was required to consider the best interests of children in Australia, as mandated by s 501(1A) of the Act. Section 501(1A) provides that in making a decision under s 501(1) or (2), the Minister must consider the best interests of any children in Australia who have a particular relationship with the person. The High Court also considered whether the Minister's decision to refuse the visa was affected by an error of law, specifically whether the Minister failed to consider relevant considerations or took into account irrelevant considerations.

The High Court held that s 501(1A) of the Act imposes a mandatory consideration of the best interests of children in Australia when the Minister exercises the power to refuse to grant a visa under s 501(1). The Court reasoned that the language of s 501(1A) is clear and unambiguous, requiring the Minister to undertake this consideration as part of the decision-making process. The Court found that the Minister's delegate had failed to consider this mandatory consideration, thereby committing an error of law. The appeal was dismissed.