Federal Court of Australia

Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 962

ORDERS

THE COURT ORDERS THAT:

1.    The time for bringing an application for review be extended to 13 November 2024.

2.    The application for review be dismissed.

3.    The applicant pay the respondent’s costs of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant seeks an extension of time to apply for judicial review of a decision made by the respondent (the Minister) on 19 June 2024 to cancel the applicant’s visa under s 501BA of the Migration Act 1958 (Cth) (the Act). The application is opposed by the Minister.

2    Section 477A of the Act provides, relevantly:

477A    Time limits on applications to the Federal Court

(1)    An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

…

3    The applicant received notification of the Minister’s decision on 2 July 2024. Under s 477A(1) of the Act, the applicant had 35 days (that is, until 6 August 2024) to apply for judicial review, but the application for an extension of time was not filed until 13 November 2024.

4    The issue is whether, within s 477(2) of the Act, the Court is satisfied that it is necessary in the interests of the administration of justice to make an order extending the 35 day period.

5    In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579, the High Court held at [12]:

On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court’s satisfaction that an order extending time “is necessary in the interests of the administration of justice”. Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

6    At the hearing, the parties were informed that if I decided to grant an extension of time, I proposed to also decide, as far as possible, the application for judicial review. That course was not opposed, subject to the applicant’s contention that he may require an opportunity to provide notices under s 78B of the Judiciary Act 1903 (Cth).

7    I will address the factors submitted by the parties to be relevant to the application for extension of time and for judicial review.

The length of and explanation for the delay

8    The application for an extension of time was filed 99 days after the expiration of the 35 day limitation period. In the context of the 35 day limit, the delay of 99 days can be described as significant and substantial.

9    In considering the applicant’s explanation for the delay, it is relevant to begin by considering the chronology of events that led to the Minister’s decision under s 501BA of the Act.

10    The applicant was born in Liberia and arrived in Australia in November 2008 as the holder of a TO-300 visa. He was subsequently granted a Partner (Permanent) (Subclass 801) visa.

11    On 21 May 2020, the applicant was convicted and sentenced to seven years’ imprisonment for one count of common assault and eight counts of rape (noting that a file note from the Department of Home Affairs describes the applicant as having been convicted of five counts of rape). On 2 July 2020, the applicant’s Partner visa was cancelled pursuant to s 501(3A) of the Act. On 29 July 2020, he made representations seeking revocation of the cancellation decision.

12    On 12 April 2023, the Minister’s delegate decided not to revoke the cancellation decision. On 29 June 2023, the Administrative Appeals Tribunal (the Tribunal) decided that the cancellation of the applicant’s visa should be revoked pursuant to s 501CA(4) of the Act and, accordingly, his visa was reinstated.

13    The Minister then made the decision to cancel the applicant’s visa under s 501BA of the Act on 19 June 2024. The Minister decided not to accord the applicant natural justice.

14    The applicant has not produced his own affidavit explaining the reasons for his delay. Instead, he relies upon the affidavit of his current solicitor, Ms Follett, and his former solicitor, Ms Smith, who provide their evidence substantially on information and belief.

15    Ms Smith, who is employed by Timpson Immigration Lawyers in Brisbane, deposes that on 2 July 2024 officers from the Australian Border Force attended the applicant’s home, advised him of the cancellation of his visa and took him into immigration detention in Brisbane. She states that the applicant instructs that he was not initially in a financial position to fund legal representation as he supported his family in Australia and Liberia.

16    Ms Follett, who is employed by MSM Legal in Adelaide, deposes that after being taken into immigration detention, the applicant attempted to source pro bono assistance, but was unsuccessful in doing so. He was then moved on 15 July 2024 to the Yongah Hill Immigration Detention Centre, about 100 km outside Perth.

17    Ms Follett deposes that the applicant contacted Timpson Immigration Lawyers in Brisbane on or about 29 July 2024, and subsequently provided relevant documentation to them. Timpson Immigration Lawyers explained to Ms Follett the applicant’s delay in seeking representation stemmed from his previous representatives having advised that they would find someone who may be able to assist him but failing to do so. According to Ms Follett, the applicant was able to raise $8,000 towards the fees of Timpson Immigration Lawyers, which he paid in part on 9 August 2024, but was subsequently unable to find the further $20,000 they required.

18    Timpson Immigration Lawyers lodged the application for an extension of time on 13 November 2024. On 31 January 2025, they notified the applicant of their intention to cease acting.

19    Ms Follett deposes that the applicant subsequently contacted Law Access in Western Australia, who were able to provide pro bono legal assistance to him.

20    I accept the Minister’s submission that the applicant’s explanation for the delay is vague and somewhat unsatisfactory. This is partly due to the absence of direct evidence from the applicant and partly due to an incomplete explanation of the circumstances by Ms Smith and Ms Follett.

21    The Minister observes that the applicant seeks to rely on his lack of financial capacity to retain lawyers and submits that lack of legal resources or legal assistance is generally not considered to provide an adequate explanation for delay, citing BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [38] and AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884 at [34(a)]. The Minister also submits that the contention that the applicant lacked funds is difficult to accept at a factual level.

22    The affidavits of Ms Smith and Ms Follett do not fully explain the applicant’s delay. It is not suggested that the applicant was unaware of the 35 day time limit, nor that he lacked the capacity to personally file an application within time. In these circumstances, I am not satisfied that the applicant has provided an adequate explanation for the delay.

23    Nevertheless, the limited explanation that has been offered is plausible. I accept that the applicant did seek to secure pro bono assistance and then contacted solicitors within the limitation period. Initially he was unable to fund legal representation, but was able to pay Timpson Immigration Lawyers $8,000 or at least some part of that amount by 9 August 2024. That was only three days outside the time limit. Ms Smith has not explained why the application for an extension of time was not filed for a further three months until 13 November 2024. The evidence does not suggest that the applicant simply sat on his hands and did nothing to protect his interests within the limitation period.

24    Although I am not satisfied that the applicant and his former lawyers have provided an adequate explanation for his delay, his efforts, both within and after the 35 day period, to obtain legal representation to challenge the Minister’s decision do weigh in his favour to some extent.

Any prejudice to the parties

25    The applicant’s submissions in support of an extension of time tend to focus on the detriment to the applicant and his children if he is unable to have his visa restored. This is not the correct focus. The correct focus is on the prejudice to the interests of the administration of justice through the inability of the applicant to now have his application for judicial review heard and decided. That factor is substantially taken into account by the Court’s assessment of the merits of his proposed application: see AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401 at [48]-[49].

26    The Minister does not complain of any prejudice to his ability to defend the case. However, the Minister submits that there is a public interest in the timely finalisation of migration proceedings, which weighs against the applicant: c.f. Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [15]. I accept that submission.

The merits of the proposed application

Section 501BA and the proposed grounds of review

27    At the time of the decision, s 501BA of the Act provided:

501BA Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

28    The applicant’s proposed Further Amended Originating Application relies upon the following grounds of review:

1.    The Respondent committed error of law going to jurisdiction by failing to address the best interests of the children involved (the Applicant’s biological and step-children) in a manner that would allow for appropriately weighing their interests with a primacy, or actually weighed their best interests with a primacy, as appropriate under the United Nations Convention on the Rights of the Child (CROC) Article 3.

Particulars

The Respondent recited facts regarding the relationship of the Applicant to the children involved but made no assessment of the impact on the best interests of the children involved, as Australian citizens, of the Applicant’s proposed removal, other than to observe that the Applicant’s wife would have difficulty going with the Applicant to Liberia with her daughter “as she was born in Australia and had never been ‘in such places’”. The Respondent made no assessment of the best interests of the children involved if they went to Liberia in terms of economic, health or cultural impact, or such assessment if they remained in Australia after the Applicant’s removal in terms of their emotional bond with their father and their economic situation.

2.    Additionally, or in the alternative, the Respondent failed to address the best interests of the children involved in a manner that would allow for appropriately weighing their interests with a primacy as appropriate under the parens patriae aspect of the prerogative, as given force in s61 of the Constitution.

Particulars

The Respondent recited facts regarding the relationship of the Applicant to the children involved but made no assessment of the impact on the best interests of the children involved, as Australian citizens, of the Applicant’s proposed removal, other than to observe that the Applicant’s wife would have difficulty going with the Applicant to Liberia with her daughter “as she was born in Australia and had never been ‘in such places’”. The Respondent made no assessment of the best interests of the children involved if they went to Liberia in terms of economic, health or cultural impact, or such assessment if they remained in Australia after the Applicant’s removal in terms of their emotional bond with their father and their economic situation.

29    It may be seen that the applicant’s grounds focus upon the Minister’s consideration of the best interests of relevant children, including under Article 3(1) of the United Nations Convention on the Rights of the Child 1990 (the Convention).

The Minister’s reasons

30    The Minister’s reasons commence by noting that the Tribunal decided on 29 June 2023 to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Act. The Minister was satisfied the applicant did not pass the character test and that cancellation would be in the national interest. The Minister then proceeded to consider the exercise of his discretion, and it was in that context that the Minister came to consider the best interests of minor children.

31    The applicant has a biological son. His former partner lives with their son and her two children from another relationship. The applicant’s new partner has a daughter who is the applicant’s stepdaughter. The applicant’s son and stepdaughter and his son’s two half-siblings are the relevant children.

32    The Minister’s reasons state:

Best interests of minor children

45.    In considering whether to cancel Mr THOMPSON’s visa, I was mindful of Article 3 of the United Nations Convention on the Rights of the Child, to which Australia is a signatory, and treated the best interests of any affected minor children in Australia as a significant consideration.

46.    Mr THOMPSON submits that he has one biological minor child, [name redacted], born on 20 February 2016 (8 years of age) who is an Australian citizen. The mother of [name redacted] is [name redacted], Mr THOMPSON’s former partner. [Name redacted] has two other minor children who are half-siblings to Mr THOMPSON’s biological son: daughter [name redacted] (born 24 September 2009, 14 years of age) and son, [name redacted] (born 20 April 2011, 13 years of age). Mr THOMPSON also has stepdaughter, through his current partner, [name redacted]. His stepdaughter, [name redacted] was born 9 March 2012 and is 12 years of age Attachment C.

47.    Before the AAT, there was evidence that [name redacted] lived with his mother and prior to going to prison, Mr THOMPSON would see [name redacted] and “talk to him like a father most days after work.” Mr THOMPSON claimed that if he was to return to Liberia, they may never see each other again and would have to maintain communication by digital means. Mr THOMPSON also claimed to have a “good relationship” with [name redacted]’s half-siblings, [name redacted] and [name redacted] and that when he was with his former partner, [name redacted], he used to “buy school books and other things for the children” and treated [them] the same way [as] his biological son, [name redacted]. He further claimed that the children called him “daddy” and continued to visit “most weekends”, they have “little to do” with their biological father. Mr THOMPSON’s former partner, [name redacted] “strongly supports” Mr THOMPSON remaining in Australia for the sake of the children Attachment D; Attachment P.

48.    I have also considered the evidence about Mr THOMPSON’s relationship with his step-daughter, including that the statements provided by Mr THOMPSON’s wife, [name redacted] in support of the revocation request which amongst other things stated that Mr THOMPSON provided financial support for not only [name redacted]’s minor child but also her adult son and that it would be difficult for her to return to Liberia with Mr THOMPSON with her daughter as she was born in Australia and had never been “in such places” Attachment O.

49.    I note that the AAT gave “greatest weight” to the adverse impact on Mr THOMPSON’s biological son, [name redacted] and his stepdaughter, [name redacted] and lesser weight to the impact on [name redacted]’s half-siblings, [name redacted] and [name redacted]. I agree with this assessment and find that… Mr THOMPSON has a close and ongoing relationship with his biological son and that there is a discernible impact on Mr THOMPSON’s removal to his stepdaughter including her living and care arrangements should her mother return to Liberia with Mr THOMPSON.

50.    I… accept that this consideration can be given significant weight against cancellation.

Ties to Australia

…

53.    I have given particular weight to the presence in Australia of Mr THOMPSON’s children, recognising the particularly strong bond that parents have with their children, regardless of their age. I have also made findings regarding the best interests of the minor children above.

54.    I have considered the impact of visa cancellation upon Mr THOMPSON’s immediate family in Australia, particularly his current and former partners and find that those persons would experience practical and financial hardship.

33    The reasons state at [10] that the Minister had given consideration to information given by the applicant to the Tribunal, “as reflected in the decision record of the AAT”. The Minister, particularly at [47], summarised some of the evidence recorded in the Tribunal’s reasons about the applicant’s relationships with the children. At [49], the Minister stated that he agreed with the Tribunal’s assessment that “greatest weight” should be given to the adverse impact on the applicant’s son and stepdaughter and lesser weight to the impact on his son’s half-siblings. The Minister’s references to the Tribunal’s reasons indicate that the Minister took into account at least some aspects of those reasons in making his own decision.

34    The Tribunal had considered the best interests of the minor children, finding:

The best interests of minor children in Australia

56.    It follows from the consideration set out above and elaborated below, that revocation is in the best interests of:

•    JA. JA’s mother L has always had the primary parental role in JA’s life. The Applicant’s parental role has been secondary and was impacted negatively during the last three years since he has been in custody and immigration detention. He spent less time with JA from about 2016 when his relationship with L ended. JA seems very attached to him. He has provided some financial support to JA when he was working. The country information shows that the Applicant’s capacity to provide financial support for JA is likely to be much less, if not nil, if he returns to Liberia.

•    DA. It seems that whether T leaves DA in Australia or takes her to Liberia, depends on whether DA’s father is prepared to care for her. DA spends some time with her father about every second weekend. He helps with child support sometimes, but never more than $200 or $250. Whether he would continue to do so if DA returns to Liberia is unknown. DA has lived in Australia with her mother all her life. She will probably be separated from one of her parents if the Applicant returns to Liberia. If the Applicant remains in Australia, he will again provide financial support to the family unit which includes DA.

•    BL and BE, but to a lesser extent. The Applicant forms part of their extended family.

57.    I have taken into account in the case of each child that communication may be possible with the person in a different country by telephone or digital devices. Such communication falls far short of personal contact.

58.    I do not accept the Respondent’s contention that the Applicant’s history of offending raises doubts about his ability to play a positive role in the lives of those children if he was released into the community. He has played a positive role in the past. I do not consider that his offending has changed his ability to do so in the future.

59.    This consideration weighs very heavily in favour of revocation.

35    Earlier in its reasons, the Tribunal had explained the evidence before it concerning the applicant’s relationship with each of the children.

The submissions

36    The applicant accepts that the Minister purported to address the best interests of the relevant children as a primary consideration. However, in support of the first proposed ground of review, he contends that the Minister failed to address those interests in, “a manner that would allow for appropriately weighing their interests with [appropriate] primacy”. I understand the applicant’s submission to have two components. First, he submits that the Minister failed to confront the central question of what the best interests of the children required him to decide. Secondly, he submits that the Minister failed to give proper, genuine and realistic consideration to the children’s best interests.

37    The applicant’s first and second proposed grounds are interrelated since each involves the proposition that the Minister was under an obligation to take into account the best interests of the minor children as a primary consideration.

38    The second ground invokes the opinion expressed by Gaudron J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 304 (Teoh) that it is arguable that citizenship carries a common law right on the part of children and their parents to have a child’s best interests taken into account as a primary consideration in discretionary decisions by governmental bodies which directly affect the child’s individual welfare. Her Honour suggested that the body politic, and within it the Commonwealth executive, may have a duty to vulnerable individuals, including children, just as kings had such a duty arising from the position of the Crown as parens patriae. The applicant seeks to argue that this common law right conditions the executive power of the Commonwealth vested under s 61 of the Constitution. In Minister of State for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433, Allsop J (as his Honour then was) ultimately considered it unnecessary to decide this question but observed at [115] that it was, “one of importance and some difficulty”. If it became necessary for the Court to determine the issue, it would be necessary for the applicant to give notice under s 78B of the Judiciary Act.

39    The Minister submits that, properly construed, the Minister’s reasons show he understood and determined the question of whether cancellation of the applicant’s visa was or was not in the relevant children’s best interests. The Minister also submits that he was under no obligation to take into account any unenacted international convention and, consequently, any error in interpreting or applying such a convention could only amount to an error within jurisdiction, citing Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [20] and [29]. The Minister also relies upon Lynch v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1128 at [19] and Snedden v Minister for Justice for the Commonwealth (2014) 230 FCR 82 at [152]-[154] to submit that nothing in Teoh supports any proposition that a decision-making process which does not require the best interests of children to be treated as a primary consideration is itself unlawful.

Consideration of the proposed grounds

40    The applicant’s proposed first ground relies, at least in part, on Article 3(1) of the Convention, which states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

41    The applicant relies on a series of cases that have considered similar requirements to address the best interests of minor children under Ministerial Directions given under s 499 of the Act. The relevant cases include Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 (Vaitaiki), Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Wan) and RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365 (RGCZ).

42    In Vaitaiki, Burchett J held at 619 that, “the tribunal failed to give proper consideration to the children’s best interests”, having found at 618:

I am compelled to conclude that, not only were the children’s best interests not made a primary consideration; they were not given adequate consideration at all. They were not treated as a factor of great significance in the decision whether the appellant should be deported. …[The] deputy president treats the question, not as what the best interests of the children require him to decide with respect to the proposed deportation of the appellant, but what each set of children should do, given that their father would be deported.

43    In the same case, Branson J, having accepted at 630 that the Tribunal in its reasons purported to act in conformity with the Convention, observed at 631:

[It] is noteworthy that nowhere do they seek to identify what would, in the circumstances before the AAT, be the result that would overall be conducive to the best interests of the children. At best they give consideration to the children’s best interests in a limited way within a restricted framework.

…

I conclude, in broad agreement with Burchett J, that although the AAT purported to act on the basis that the best interests of the appellant’s children were a primary consideration before it, it did not in fact give proper, genuine and realistic consideration to the children’s best interests.

(Citations omitted.)

44    In Wan, the Full Court held at [28]:

In giving consideration, as it had done in Vaitaiki, to what the children might do if their father were required to cease living in Australia, the Tribunal was not undertaking an inherently inappropriate task. Such consideration was capable of assisting the Tribunal in determining whether the strength of any other consideration or considerations outweighed the best interests of the children. However, it was not a useful thing to do without the Tribunal having first identified what the best interests of the children indicated should be decided with respect to Mr Wan’s visa application.

45    In RGCZ, the Full Court held:

[44]    We accept the appellant’s submission that the best interests of the children were not to be viewed through the prism of what the appellant would do if the visa was refused. Paragraph 8.3(1) of the Direction required the Tribunal to engage with the question of whether the children’s best interests were served by the grant or refusal of the visa, not by hypothetical considerations of how the appellant might act if the visa was refused. The Tribunal needed to make a determination in relation to this question...

…

[46]    Notwithstanding the Tribunal’s references to various matters concerning the children, it failed to make a determination about whether refusal of the visa under s 501 of the Act was, or was not, in the best interests of the children…

46    The Minister’s reasons certainly refer to Article 3 of the Convention and indicate that he, “treated the best interests of any affected minor children in Australia as a significant consideration”. The Minister noted that the applicant claimed that he and his son may never see each other again and would have to maintain communication by digital means and found that the applicant has a close and ongoing relationship with his biological son. The Minister found that the applicant’s removal would cause a discernible impact on his stepdaughter including her living and care arrangements should her mother return to Liberia with the applicant. The Minister noted that the applicant claimed to have a “good relationship” with his son’s half-siblings and that their mother strongly supported the applicant remaining in Australia for the sake of the children. However, the Minister did not directly pose and answer the question of whether the children’s best interests would be served by the cancellation of the applicant’s visa (which would result in the applicant being removed to Liberia), or a decision not to cancel (which would result in the applicant remaining in Australia).

47    If the reasons that were directly stated by the Minister were to be taken to reflect the full extent of the Minister’s consideration of the best interests of the children, I would conclude that he failed to consider whether cancellation of the applicant’s visa was or was not in the children’s best interests. In that circumstance, I would also find that the Minister’s very limited analysis of the impact of the applicant’s removal indicated that he had failed to give proper, genuine and realistic consideration to whether cancellation of the applicant’s visa was or was not in the children’s best interests.

48    However, the Minister’s express references to his consideration of the Tribunal’s reasons at [10], [47] and [49] cannot be ignored. They demonstrate that the Minister had read and taken into account the passages from the Tribunal’s reasons that were relevant to assessing the best interests of the children, including the material in those reasons under the heading, “The best interests of minor children in Australia”. That material includes the Tribunal’s specific determination at [56] that revocation of the cancellation decision would be in the best interests of the children.

49    The Minister’s reasons should not be scrutinised, “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]. A fair reading of the Minister’s reasons indicates that the Minister, by considering and adopting relevant parts of the Tribunal’s reasons, understood that the relevant question was whether cancellation of the applicant’s visa would or would not be in the children’s best interests. The Minister determined that cancellation would not be in their best interests, finding that this factor weighed very heavily against cancellation.

50    In addition, the Minister’s consideration of the children’s best interests should be understood to incorporate the Tribunal’s analysis of the evidence concerning the issue. There is no suggestion that the Tribunal failed to give proper, genuine and realistic consideration to the children’s best interests as a primary consideration. Accordingly, the Minister cannot be taken to have failed to do so.

51    It follows that the applicant’s first ground, which alleges that the Minister failed to adequately address the best interests of the relevant children, and failed to weigh their interests as a primary consideration pursuant to Article 3(1) of the Convention must be rejected.

52    My conclusion that the Minister did consider the best interests of the children as a primary consideration makes it unnecessary to consider whether the Minister was under any obligation to do so. Accordingly, the applicant’s proposed second ground, which asserts that the executive power of the Commonwealth conferred under s 61 of the Constitution is subject to an obligation to consider as a primary consideration the best interests of children whose individual welfare is affected by a decision, does not arise.

53    It can be accepted that the Minister’s failure to directly identify and address the question of whether cancellation of the applicant’s visa would or would not be in the best interests of the children created some uncertainty about whether he actually engaged with that question. Although I have determined the first ground against the applicant, I consider that the ground had sufficient merit to warrant an extension of time to make an application for judicial review notwithstanding his delay and the absence of a satisfactory explanation for the delay.

54    However, for the reasons I have given, the application for judicial review must be dismissed. The applicant should pay the Minister’s costs.

Associate:    

Dated:    24 July 2026