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

This matter concerned an application by YHHT (the applicant) to review the decision to cancel his visa, with the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the respondent) opposing the application. The case was heard by N A Manetta SM.

The primary legal issue before the court was whether the applicant's conviction for assault constituted "family violence" as defined under Direction 90, which was the relevant Direction applied by the delegate. This involved interpreting the definition of "family violence" within Direction 90, specifically whether it encompassed violence perpetrated against a former partner, particularly when the parties were separated at the time of the assault and the applicant had a new partner. A secondary, but ultimately undecided, issue was whether the applicant had an "accrued right" to have his application assessed under the previous Direction 79, given that Direction 90 came into effect after the visa cancellation and invitation to make submissions.

The SM assumed, in favour of the respondent, that the violence inflicted upon the applicant's former partner fell within the scope of the Direction, despite the ambiguity in its drafting regarding former family members. The applicant had been convicted of assault in the District Court of South Australia. The assault occurred at the former partner's home while the applicant was dropping off their children, and the couple had been separated for some time. The SM noted that the definition of "family violence" in Direction 90 referred to behaviour that coerces or controls a "member" of a person's family, and did not expressly include former family members.

The SM decided to set aside the decision under review and substitute a decision that the cancellation of the applicant's visa be revoked. This decision was reached under Direction 90, which was considered no more favourable, and in some respects less favourable, to the applicant than Direction 79, particularly concerning the emphasis on family violence.