Preston v Minister for Immigration and Multicultural and Indigenous Affairs [No 2]

In the matter of Preston v Minister for Immigration and Multicultural and Indigenous Affairs [No 2], the court was required to consider whether the Minister for Immigration and Multicultural and Indigenous Affairs had erred in his decision-making process in relation to Mr. Preston's application for a visa. The primary issue was whether the Minister failed to consider relevant considerations when making his decision, specifically regarding the impact of Mr. Preston's removal on his family, including his daughter who has drug addiction issues and a young child, potentially autistic, who is under the care of Mr. Preston's parents. The court examined whether these factors were mandatory considerations that the Minister should have taken into account.

The court held that the matters put forward by Mr. Preston were not mandatory considerations that the Minister was required to take into account. It was found that Mr. Preston had addressed family issues in his submission but had not informed the department of the specific matters he later raised in his affidavit. Furthermore, the court questioned whether the issues raised were of a mandatory nature that would constitute a jurisdictional error if not considered. The court concluded that the contention regarding the failure to consider relevant family issues could not succeed as a ground for review.

Consequently, the application was dismissed, and Mr. Preston was ordered to pay the respondent's costs of the application. The court's reasoning was based on the understanding that the content of procedural fairness is assessed practically rather than theoretically, and in the context of the case, the complained-of sentence was unlikely to have had a practical effect on the Minister's consideration.