Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The applicant, Mr Harris, sought judicial review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his visa. The cancellation was based on Mr Harris failing the character test due to having a substantial criminal record, encompassing drug, property, firearms, and driving offences. The matter came before the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the delegate had erred in the application of Direction No 79, which governs the revocation of visa cancellations. Specifically, the Court was required to consider whether the delegate had given appropriate weight to the prescribed primary and other considerations, including the protection of the Australian community, the nature and seriousness of the applicant's criminal offending, the risk posed to the Australian community, the best interests of the applicant's minor children, the expectations of the Australian community, and the strength, nature, and duration of the applicant's ties to Australia. The Court also considered the extent of impediments Mr Harris would face if returned to New Zealand and the impact of the COVID-19 pandemic.

The delegate's decision was affirmed. The Court found that the delegate had properly considered the relevant factors under Direction No 79. The delegate had acknowledged the applicant's long-term residence in Australia since the age of three, his ties to Australia, and the best interests of his minor children. However, the delegate had also given significant weight to the seriousness and multiplicity of the applicant's criminal offending, the risk he posed to the Australian community, and the need to protect the community from such risks. The delegate's assessment of these factors, including the limited impediments to return to New Zealand and the impact of the pandemic, was found to be open to the delegate and not vitiated by error.