Nweke v Minister for Immigration, Multicultural Affairs and Citizenship

Nweke, a Nigerian citizen, challenged the Minister’s decision to cancel his permanent resident visa under section 501A of the Migration Act. Nweke, who arrived in Australia in 2000 and was granted permanent residency in 2003 as the spouse of an Australian citizen, was convicted in 2007 of aiding and abetting the importation of a trafficable quantity of cocaine. His visa was initially cancelled by a delegate of the Minister in 2011, but this was set aside by the Administrative Appeals Tribunal. The Minister subsequently cancelled the visa again, which was quashed by the Federal Court. The Minister then made a second decision to cancel the visa, which is the subject of this appeal. Nweke argues that the Minister failed to take into account the best interests of his four Australian citizen children as a primary consideration when making the decision to cancel his visa.

The court was required to decide whether the Minister, in cancelling Nweke’s visa, took into account as a primary consideration the best interests of Nweke’s children. The court had to examine the Minister’s statement of reasons to determine if the Minister had considered the best interests of the children as a primary consideration, and if not, whether this was a sufficient ground for setting aside the Minister’s decision. The court also needed to determine if the Minister had considered the national interest and whether the decision was in the national interest.

The court found that the Minister had considered the best interests of the children, albeit not as a primary consideration. The court noted that the Minister had considered the impact of the cancellation on the children but did not consider this as a primary factor. The court held that the Minister’s failure to consider the best interests of the children as a primary consideration did not invalidate the decision because the Minister had still considered the children’s interests. The court further found that the Minister had adequately considered the national interest and that the decision was in the national interest. The court dismissed the appeal and ordered that the appeal be dismissed, with costs.