SZSIU v Minister For Immigration and Anor (No.2)

The Federal Court of Australia, constituted by Emmett J, considered the application of SZSIU for judicial review concerning a decision made by the Minister for Immigration and Border Protection. The applicant sought to challenge the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation under s 501(3C) of the Migration Act 1958 (Cth).

The central legal issue before the Court was whether the Minister, in exercising the power to refuse to revoke a mandatory visa cancellation, was required to consider the best interests of children who were not Australian citizens. This question arose in the context of the applicant's submission that the Minister had failed to take into account relevant considerations, specifically the impact on his children, who were Australian citizens, when making the decision.

Emmett J reasoned that the Minister's power under s 501(3C) was discretionary and that the exercise of such a power required the consideration of all relevant factors. His Honour held that the best interests of children, even if they were not Australian citizens, were a relevant consideration for the Minister when deciding whether to revoke a mandatory visa cancellation. The Court found that the Minister had failed to consider this relevant consideration, thereby rendering the decision unlawful. The Court made orders setting aside the Minister's decision and remitting the matter to the Minister for reconsideration according to law.