Does ‘national interest’ require exceptionality?

By
Sergio Zanotti Stagliorio
-

Federal Court. Must there be something exceptional about that which is said to be 'in the national interest' under s 501BA(2)(b) of the Migration Act 1958 (Cth)?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: In determining under s 501BA(2)(b) of the Migration Act 1958 (Cth) what is in the national interest, must the Minister "have in mind some aspect of the national interest that may pertain to the circumstances of the person to whom the visa has been issued"?

Question 2: Must the Minister "be able to formulate the aspect of the national interest that will be served, promoted or advanced by the cancellation and why"?

Question 3: Must there need to be something exceptional about that which is said to be 'in the national interest'?

Question 4: Can it be said that, for the power in s 501BA(2) to be enlivened, "there needs to be some fault or correction required in the decision of the delegate or the Tribunal"?

The FCA answered those questions as follows:

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