HDMN and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by HDMN to review the mandatory cancellation of his visa by the Minister for Immigration and Border Protection. The dispute centred on whether the Minister's decision to cancel the visa was correct, particularly in light of the considerations outlined in Ministerial Direction No. 65. The case was heard by Deputy President Bernard J McCabe.

The court was required to determine several legal issues, primarily focusing on the application of Ministerial Direction No. 65. These included assessing the primary consideration of protecting the Australian community, which involved evaluating the nature and seriousness of the applicant's past conduct and the risk he posed if he committed further offences. Additionally, the court had to consider the best interests of the applicant's minor children in Australia, as well as other considerations such as the applicant's medical conditions and threats of retaliation from gang members. The court also needed to consider the applicant's non-refoulement obligations.

In reaching its decision, the court meticulously examined the evidence presented regarding the applicant's extensive criminal history in both New Zealand and Australia, noting convictions for violent offences and repeated instances of driving without a licence. The court acknowledged the applicant's two minor children, with particular emphasis on his 15-year-old son, and considered the potential impact of his removal on the child. While recognising the value of a parental relationship, the court found the evidence regarding the son's current living situation and the applicant's past parenting performance to be uncertain, noting concerns about drug use and a turbulent relationship. The court also considered the applicant's claims of threats from gang members and his medical conditions, but found the evidence on these matters to be insufficient to warrant a different outcome.

Ultimately, the court found that the decision under review should be set aside. The matter was remitted for reconsideration by the Minister, with the court directing that the applicant's visa cancellation be reconsidered in light of the evidence and the principles established in Ministerial Direction No. 65.