Secretary Attorney-General's Department v S

Secretary, Attorney-General's Department (the appellant) sought to appeal a decision of the Federal Circuit Court of Australia concerning the validity of a notice issued under section 501(2) of the *Migration Act 1958* (Cth) (the Act) to Mr S (the respondent). The notice purported to cancel Mr S's visa on the grounds that he did not pass the character test. The primary dispute concerned whether the appellant had properly considered the mandatory considerations under section 501(6)(a) of the Act, specifically the best interests of minor children in Australia who were affected by the decision.

The central legal issue before the Full Federal Court was whether the appellant, in issuing the notice under section 501(2) of the Act, had failed to consider the best interests of Mr S's two children, who were Australian citizens and resided in Australia, as required by section 501(6)(a) of the Act. This involved determining the scope of the appellant's obligation to consider this factor and whether the evidence demonstrated a failure to do so.

Hannon J, in delivering the judgment of the Full Federal Court, found that the appellant's delegate had indeed failed to properly consider the best interests of the minor children. The court reasoned that while the delegate had acknowledged the existence of the children, the delegate's assessment did not demonstrate a genuine and practical consideration of their best interests in the context of the visa cancellation decision. The delegate's reasons focused heavily on the negative aspects of Mr S's character and the risk he posed, without adequately weighing the impact of his removal from Australia on his children. The court applied the principle that a failure to give proper consideration to a mandatory consideration under the Act renders the decision invalid.

The appeal was allowed, and the decision of the Federal Circuit Court was set aside. The matter was remitted to the Administrative Appeals Tribunal for redetermination according to law.