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

The applicant, Mr. King, 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. King failing the character test due to a substantial criminal record, specifically for offences of unlawfully assaulting another and thereby doing bodily harm in circumstances of aggravation. The matter came before the Federal Circuit and Family Court of Australia.

The court was required to determine whether the delegate had erred in law when considering the revocation of the visa cancellation. This involved assessing whether the delegate had properly applied Direction No 90, which sets out the primary and other considerations relevant to such decisions. Specifically, the court needed to examine how the delegate weighed factors such as the protection of the Australian community, the nature and seriousness of the applicant's criminal offending, the risk to the community if further offences were committed, the best interests of the applicant's minor children in Australia, community expectations, and the strength, nature, and duration of the applicant's ties to Australia, as well as the extent of impediments to his return to New Zealand.

The court found that the delegate had correctly applied Direction No 90. The delegate's reasoning demonstrated a proper consideration of the relevant factors, including the serious nature of the applicant's offending, the risk posed to the Australian community, and the limited impediments to his return to New Zealand. While the delegate acknowledged the applicant's ties to Australia and the best interests of his children, these considerations were appropriately weighed against the paramount need to protect the Australian community from individuals with a substantial criminal record. The court concluded that the delegate's decision was open to them on the evidence before them and did not involve an error of law. Consequently, the delegate's decision to affirm the non-revocation of the visa cancellation was upheld.