Plaintiff S71/2014 v Minister for Immigration and Border Protection & Ors

The applicant, identified as Plaintiff S71/2014, sought judicial review of decisions made by the Minister for Immigration and Border Protection and other respondents concerning the applicant's immigration status. The dispute centred on the lawfulness of the Minister's decision to refuse to revoke a deportation order made against the applicant, who was a non-citizen. The matter came before Gageler J of the High Court of Australia.

The central legal issue before the Court was whether the Minister had acted lawfully in refusing to revoke the deportation order. This required the Court to consider the scope of the Minister's power under section 501(3) of the *Migration Act 1958* (Cth), which allows the Minister to refuse or cancel a visa if the person does not pass the character test. Specifically, the Court had to determine whether the Minister's discretion to revoke a deportation order under section 501(3B) of the Act was engaged and, if so, whether the Minister had exercised that discretion according to law.

Gageler J reasoned that the power to revoke a deportation order under section 501(3B) is a distinct power from the power to make a deportation order under section 501(3). The Court held that the Minister's decision-making process in refusing to revoke the deportation order was vitiated by an error of law. This error arose from the Minister's misapprehension of the nature and scope of the power conferred by section 501(3B), which requires the Minister to consider whether to revoke the deportation order, rather than simply whether to maintain it. The Minister's approach had effectively treated the power to revoke as a power to refuse revocation, thereby failing to undertake the necessary assessment of whether the deportation order should be revoked.

The Court made orders quashing the decision of the Minister to refuse to revoke the deportation order and remitting the matter to the Minister for reconsideration according to law.