Herewini and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

The applicant, Mr. Herewini, sought judicial review of a decision to refuse to revoke the cancellation of his Subclass 444 Special Category (Temporary) visa. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent. The dispute centred on whether the applicant passed the character test, and if not, whether the cancellation of his visa should be revoked, particularly in light of Ministerial Direction No. 99. The matter was heard by George SM.

The court was required to determine the weight to be given to various considerations under Ministerial Direction No. 99 when assessing whether to revoke the cancellation of the applicant's visa. Specifically, the court had to consider the seriousness of the applicant's offending, the extent of any impediments he might face upon removal from Australia, and the impact of the decision on the Australian community, including any victims. A key issue was the interpretation of "family violence" and "intimate personal relationship" for the purposes of the Direction, and how these related to the applicant's past.

George SM reasoned that while the applicant's past offending was serious, the primary considerations under the Direction, such as the potential impediments to re-establishing himself in New Zealand and the impact on his rehabilitation if removed from Australia without the support of his de facto partner, weighed heavily in favour of revoking the visa cancellation. The court noted that the applicant had minimal contact with his family in New Zealand, some of whom were gang members, and that his de facto partner provided crucial support for his rehabilitation. The court found that the applicant would likely fail in his rehabilitation efforts if he were returned to New Zealand without this support. The court also noted the absence of evidence regarding the impact on victims or the Australian community.

The court ordered that the decision under review be set aside.