Background
David Ngatokotoru Martin, a New Zealand citizen who arrived in Australia as a child, held a Special Category (subclass 444) visa. In 2011, he was sentenced to 20 years’ imprisonment for murder, with additional sentences for reckless wounding and assault. His visa was mandatorily cancelled in 2020 because he did not pass the character test.
A ministerial delegate declined in May 2025 to revoke the cancellation under s 501CA(4) of the Migration Act 1958 (Cth). The Administrative Review Tribunal affirmed that decision. Martin sought judicial review, arguing that the Tribunal had constructively failed to exercise jurisdiction by inadequately considering the best interests of three minor grandchildren under Ministerial Direction No. 110.
The Court’s Holding
Justice Halley granted Martin leave to rely on his amended originating application but dismissed it. The Tribunal had properly considered the children’s interests and the relevant factors in paragraph 8.4(4) of Direction No. 110.
The Tribunal was entitled to find that Martin had only limited contact with two children, no meaningful relationship with the third, and insufficient evidence that separation would negatively affect them. It was also open to find that contact of the kind Martin had maintained could continue electronically from New Zealand. The Court rejected the submission that the Tribunal was required to speculate about future parental roles or infer the children’s views without evidence.
Key Takeaways
- Direction No. 110 requires consideration of children’s best interests, not a separate final weighing of every listed factor for every child.
- Factors in paragraph 8.4(4) need only be considered where relevant and on the evidence before the decision-maker.
- A tribunal need not infer children’s views or speculate about future family roles where supporting evidence is absent.
Why It Matters
The decision applies the Full Court’s approach in Nguyen: the required task is an evaluative assessment of affected children’s best interests, informed by relevant Direction factors, rather than a formulaic checklist exercise. It also illustrates the importance of concrete evidence of a child relationship, likely harm from separation, and the child’s views in challenges to character-based visa cancellation decisions.
Martin was ordered to pay the Minister’s costs.