Challenging Huynh : incorrect importation of the national interest term via the back door

Section 501(2) of the Migration Act 1958 (Cth) provides the Minister for Immigration and Border Protection with a wide-ranging power to cancel a visa of a non-citizen who fails a carefully defined character test. This article argues that the decision of Minister for Immigration and Multicultural and Indigenous Affairs v Huynh should be overruled. Two central arguments are advanced. First, on its proper construction, the "national interest" concept is an irrelevant consideration for the purposes of s 501(2). Such a construction favours a narrow approach to s 501(2). The court in Huynh adopted a broad interpretation, holding that the national interest concept may be a relevant consideration when applying s 501(2). Secondly, it is contended that individual factors specific to a non-citizen are a mandatory relevant consideration under s 501(2). For the majority in Huynh, this latter construction was not open given the broad approach adopted in relation to s 501(2) of the Act.