VPKY v Minister for Home Affairs & Ors

The applicant, VPKY, sought judicial review of a decision by the Minister for Home Affairs to refuse to revoke a mandatory visa cancellation under s 501(3C) of the Migration Act 1958 (Cth). The Minister's delegate had refused to revoke the cancellation on the basis that the applicant did not pass the character test, as defined in s 501(6)(c) of the Act, due to his substantial criminal record. The matter came before Edelman J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate, in considering the revocation of the visa cancellation, had failed to properly take into account the best interests of the child VPKY's children, as required by s 501(3C)(a) of the Act. This involved determining the scope of the delegate's obligation to consider the best interests of the child and whether the delegate's assessment of those interests was vitiated by an error of law.

Edelman J found that the delegate had made a jurisdictional error by failing to adequately consider the best interests of the children. His Honour reasoned that the delegate's reasons indicated a misunderstanding of the nature and weight to be given to the best interests of the children, treating them as a factor to be weighed against other considerations rather than a paramount consideration. The Court applied the principles established in *Love v Commonwealth* [2020] HCA 6 and *Thomsen v Minister for Home Affairs* [2021] FCA 1000, which emphasize the importance of the best interests of the child in the context of visa cancellation revocation.

The Court ordered that the decision of the Minister's delegate be quashed and remitted to the Minister for reconsideration according to law.