Smith and Minister for Home Affairs (Migration)

This matter concerned an application by Ms Smith for a review of the Minister for Home Affairs' decision to mandatorily cancel her Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on Ms Smith failing to pass the character test due to criminal convictions, including driving, drug, and dishonesty offences. The review was heard by Chris Puplick AM SM.

The primary legal issues before the court were whether the mandatory cancellation of Ms Smith's visa should be revoked, and in doing so, to assess the weight and value of the material presented, including evidence of her ties to Australia, the potential impact of her removal, and any risk of harm if returned to New Zealand. The court was required to conduct a de novo review, standing in the shoes of the original decision-maker and making the correct and preferable decision based on all the material before it.

The court considered extensive third-party evidence supporting Ms Smith, including testimony from her fiancé's family regarding her positive influence on his rehabilitation from drug addiction and her integration into their family and business. Evidence was also presented regarding her fear of retribution from a New Zealand gang, which the court noted must be given attention as it could engage Australia's non-refoulement obligations. The court affirmed that the weighing of various pieces of evidence is a matter for the Tribunal, which must approach the review independently and make its own decision on the merits.

The decision ultimately set aside the mandatory cancellation of Ms Smith's visa.