Background
Joshua Christopher Smith, a New Zealand citizen who had lived in Australia since 2008 on a Subclass 444 visa, had his visa mandatorily cancelled in November 2024 under s 501(3A) of the Migration Act 1958 after receiving a custodial sentence exceeding 12 months. A ministerial delegate declined to revoke the cancellation in August 2025.
The Administrative Review Tribunal affirmed that decision. In applying Ministerial Direction 110, it treated Smith’s 2022 offence of throwing a brick through the window of a former sexual partner as family violence and serious offending. Smith sought judicial review of the Tribunal’s decision.
The Court’s Holding
Justice Wigney set aside the Tribunal’s decision for material jurisdictional error. Under Direction 110, conduct is family violence only if it is violent, threatening or other behaviour that coerces or controls a family member, or causes that person to be fearful. The Tribunal treated intentional property damage—an example listed in the definition—as sufficient by itself, without finding the required effect on the former partner.
The Tribunal also wrongly treated conduct as objectively serious merely because the Direction says family violence is viewed very seriously by government and the community. It was required to assess seriousness in the circumstances, including relevant matters such as impact on the victim, frequency, repeated conduct and rehabilitation. Those errors affected the Tribunal’s evaluation of both community protection and family violence, creating a realistic possibility of a different result.
Key Takeaways
- An example in Direction 110’s definition of family violence does not automatically establish family violence.
- The Tribunal must make findings that the conduct coerced, controlled or caused fear where that is required by the definition.
- Direction 110 requires an independent assessment of seriousness; government and community views do not dictate that assessment.
Why It Matters
The decision confirms that visa-cancellation review decisions must apply Direction 110 according to its terms, even where the applicant has substantial criminal offending. A domestic-violence notation or property-damage offence alone cannot substitute for the Direction’s required findings.
The matter was remitted to a differently constituted Tribunal for determination according to law, and the Minister was ordered to pay Smith’s costs.