Re Feeney; Re Gallagher

The High Court of Australia considered applications for special leave to appeal in two separate matters, *Re Feeney* and *Re Gallagher*. Both applications concerned the interpretation and application of provisions within the *Migration Act 1958* (Cth) relating to the cancellation of visas on character grounds, specifically section 501(3)(a). The applicants, Mr Feeney and Mr Gallagher, were non-citizens who had their visas cancelled by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, or their delegate, under this provision due to their criminal convictions.

The central legal issue before the High Court was whether the Minister, or their delegate, was required to consider the best interests of children when exercising the power to cancel a visa under section 501(3)(a) of the *Migration Act*. This provision allows for mandatory cancellation if the Minister is satisfied that a person does not pass the character test and that the person has been convicted of a sexually based offence involving a child. The applicants argued that the obligation to consider the best interests of children, as mandated by section 4 of the *Public Interest Litigation Act 1995* (Cth) and international conventions, extended to the exercise of this particular visa cancellation power.

Kiefel CJ, in dismissing the applications for special leave, held that section 501(3)(a) of the *Migration Act* conferred a non-discretionary power on the Minister to cancel a visa once the statutory preconditions were met. His Honour reasoned that the language of section 501(3)(a) was clear and did not permit the consideration of extraneous factors, such as the best interests of children, when the power was enlivened. The obligation to consider the best interests of children, while important in other contexts, was not imported into the mandatory cancellation provisions of section 501(3)(a) by operation of law or by the terms of the Act itself. The Court found no arguable error of law in the decisions of the lower courts that had upheld the visa cancellations.