Sandhu v Minister for Immigration and Border Protection & Anor

The applicants, Mr. and Mrs. Sandhu, sought judicial review of decisions made by the Minister for Immigration and Border Protection and the second respondent, the Department of Immigration and Border Protection, concerning the refusal of their visa applications. The dispute centred on the Minister's decision to refuse to grant the Sandhus a Partner (Temporary) (Class UK) visa and a Partner (Migrant) (Class BP) visa, and the subsequent refusal by the Administrative Appeals Tribunal (AAT) to set aside those decisions. The matter was heard by Bell, Nettle, and Gordon JJ of the High Court of Australia.

The primary legal issue before the High Court was whether the Minister, in exercising the power to refuse to grant a visa under s 501(1) of the *Migration Act 1958* (Cth), was required to consider the best interests of the child, as mandated by s 5(2) of the *Children and Young Persons (Care and Protection) Act 1998* (NSW). The Sandhus argued that the Minister's decision-making process had failed to adequately consider the best interests of their child, who was an Australian citizen, and that this failure rendered the decision unlawful.

The High Court held that the *Migration Act* did not require the Minister to consider the best interests of the child in the context of a refusal decision under s 501(1). Their Honours reasoned that the *Migration Act* was a Commonwealth law and that the *Children and Young Persons (Care and Protection) Act* was a State law. They found that there was no express or implied legislative intent for the State law to operate extraterritorially or to impose obligations on Commonwealth decision-makers exercising powers under Commonwealth legislation in this manner. The Court distinguished this situation from cases where Commonwealth legislation expressly incorporated State laws or where there was a clear overlap in legislative purpose.

The High Court therefore dismissed the Sandhus' application for judicial review, finding that the Minister's decision was not vitiated by a failure to consider the best interests of the child under the NSW legislation.