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

This matter concerned an application by JCNZ (the applicant) seeking to set aside a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the respondent) to cancel the applicant's visa. The hearing was conducted by N A Manetta SM, who approached the matter de novo, reaching the correct or preferable decision based on the evidence before the court, rather than reviewing the delegate's decision for error. Mr Poynder appeared for the applicant and Ms Hargrave for the respondent.

The court was required to determine two questions, proceeding afresh on the evidence. A preliminary matter arose regarding which direction, the more recent Direction 90 or the earlier Direction 79, should apply to the consideration of the second issue. The court proceeded on the assumption that Direction 90 was the legally required direction, noting it was not more favourable to the applicant and in some respects less so, particularly concerning the new emphasis on family violence. The court also noted that while there might be an argument for an accrued right to have the review conducted by reference to Direction 79, this issue did not need to be resolved to reach a decision.

In weighing the considerations, the court found that while there were no significant impediments to the applicant re-establishing himself in the Philippines, and the impact on his mother-in-law and brother-in-law was neutral due to a lack of evidence, the court was particularly concerned by the prospect of family violence directed towards KR. The court considered the interests of the children, acknowledging they had witnessed violence, and also took into account the impact on the applicant himself of separation from his family, believing it was in his own interests to maintain personal contact. Ultimately, the court decided to set aside the visa cancellation decision and substitute a decision that the visa cancellation be revoked.