Arama and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 2268

Arama and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2268 (3 October 2025)

Applicant/s:  Orlando Bernado Charlie Arama

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/4348

Tribunal:Senior Member S Webb

Place:Canberra

Date:3 October 2025

Decision:The 11 July 2025 decision not to revoke the mandatory cancellation of Mr Arama’s Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

Statement made on 03 October 2025 at 11:47am

Catchwords

MIGRATION – mandatory visa cancellation – birth in Australia – facts necessary to establish automatic acquisition of Australian citizenship not established by available evidence – criminal convictions – failure to pass character test –  substantial criminal record – review of decision not to revoke visa cancellation – Ministerial Direction No. 110 – primary and other relevant considerations – protection of Australian community – seriousness of conduct – escalation ­– risk of reoffending – potential harms – protective factors – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of non-revocation – extent of impediments if removed from Australia – balance of considerations – decision affirmed

Legislation

Australian Citizenship Act 2007, ss 5, 12
Australian Citizenship Act 1948 s 10
Migration Act 1958 (Cth), ss 198, 499, 500, 501, 501CA

Cases

Ali v Minister for Home Affairs [2020] FCAFC 109

Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132

Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125

Bettencourt v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 172

DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97

EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2021] FCA 1536

FYBR v Minister for Home Affairs [2019] FCAFC 185

Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2018] FCAFC 116

Secondary Materials

Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)

Statement of Reasons

  1. Orlando Arama is a New Zealand citizen who has been living in Australia under a Special Category (Class TY) (subclass 444) visa (Visa). He engaged in criminal conduct and was sentenced to a term of imprisonment greater than 12 months. This resulted in mandatory cancellation of his Visa under s 501(3A) of the Migration Act 1958 (Act).

  2. Mr Arama made representations seeking revocation of the mandatory Visa cancellation decision. A delegate of the Minister decided not to revoke the decision to cancel Mr Arama’s Visa. He applied for review of this decision by the Tribunal.

  3. The review is regulated by legislative procedures set out in s 500(6) to (6L) of the Act.

    Facts

  4. The following…

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AGLC
Arama and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2268
Case
[2025] ARTA 2268
Decision Date

CaseChat Overview and Summary

The case before the court involves Mr Arama and the Minister for Immigration and Citizenship, concerning the cancellation of Mr Arama's visa. The central dispute revolves around whether the decision to cancel Mr Arama's visa should be revoked, considering his criminal history and the potential implications of his removal from Australia. The court was tasked with determining if there were sufficient grounds to revoke the visa cancellation, taking into account various statutory directives and policy considerations.

The primary legal issues before the court involved interpreting Ministerial Direction No. 110, particularly its provisions regarding the revocation of visa cancellations. The court had to balance the primary considerations, such as the protection of the Australian community and the nature and seriousness of Mr Arama’s criminal conduct, against other relevant considerations such as the extent of impediments Mr Arama would face if removed from Australia. Additionally, the court needed to assess the legal consequences of not revoking the visa cancellation and how these aligned with the statutory framework governing such decisions.

The court meticulously evaluated the evidence and arguments presented, highlighting Mr Arama's substantial criminal record and the risks he posed to the Australian community. It noted that Mr Arama's criminal activities, including violent offences and drug-related crimes, warranted stringent measures to protect the community. While considering the potential hardships faced by Mr Arama and his family if he were to be removed, the court found that these were not sufficiently compelling to warrant revocation of the visa cancellation. The court concluded that the primary considerations heavily weighed against revoking the visa cancellation decision, aligning with the statutory objectives of protecting the community and upholding the integrity of Australia's migration laws.

Ultimately, the court affirmed the decision not to revoke the visa cancellation, thereby upholding the Minister’s decision. Mr Arama remains subject to the legal consequences of this decision, which include potential removal from Australia upon his release from prison.

Orders

Orders of the court

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Background

Background to the litigation

The review is regulated by legislative procedures set out in s 500(6) to (6L) of the Act.Facts The following facts are established by the documentary and oral evidence before the Tribunal. Mr Arama’s parents are New Zealand passport holders residing in Australia. Departmental records suggest his mother first arrived in Australia on 8 May 1987 without a visa and his father first arrived in Australia on 3 December 1988 without a visa.[1][1] Exhibit 1, 146. In October 1989, Mr Arama was born in Brisbane. On 25 December 1989, he departed from Australia as a non-visaed New Zealand passport holder.[2][2] Ibid, 253. Thereafter, Mr Arama returned to Australia on 8 occasions for short periods:(a)13 January 1990 to 13 April 1990;(b)23 September 1995 to 11 October 1995 (from 1995, he travelled to Australia using a Visa);(c)16 April 1996 to 26 April 1998; (d)10 April 1999 to 26 April 1999;(e)19 April 2000 to 9 May 2000;(f)25 October 2000 to 19 November 2000;(g)7 August 2002 to 27 December 2002; and(h)21 January 2003 to 26 May 2003.[3][3] Ibid, 252-253. On 21 May 2004, Mr Arama returned to Australia. He was 14 years old. As his movement records demonstrate, he subsequently departed from Australia only for short periods.[4][4] Ibid, G16. Mr Arama has immediate and extended family members residing in Australia.[5][5] Ibid, 205. On 4 June 2022, Mr Arama married Kay Heta, a New Zealand citizen permanently residing in Australia.[6][6] Ibid, 13, 198. Mr Arama has a history of criminal convictions:[7] [7] Ibid, G3.(a)On 17 May 2010, he was convicted of ‘receiving tainted property’ and ‘fraud – dishonestly obtain property from another’. He was sentenced to 12 months’ probation and ordered to pay $250 in restitution.(b)On 12 September 2011, he was convicted of breaching the probation order and given a $350 fine.(c)On 27 February 2012, he was convicted of stealing. He was sentenced to a $300 fine and ordered to pay $80.04 in restitution.(d)On 18 July 2012, he was convicted of wilful damage and was fined $500.(e)On 6 February 2019, he was convicted of ‘destroy or damage property<=$2000 (DV)’. He was sentenced to a $750 fine.(f)On 7 July 2020, he was convicted of driving a motor vehicle while his driver’s licence was suspended. He was disqualified from driving for 3 months and fined $400.(g)On 22 April 2021, Mr Arama was convicted of ‘stalk police officer in execution of duty without actual bodily harm’. He was fined $1,800.(h)On 1 March 2023, he was convicted of:(i)two counts of ‘possess/attempt to, prescribed restricted substance’ for which he was fined $400 on each count; and(ii)‘stalk/intimidate intend fear physical etc harm (personal)’ for which he was sentenced to an 18 month community correction order; and (iii)possess or use a prohibited weapon (“knuckledusters”[8]) without permit for which he was sentenced to a 6 month term of imprisonment.(i)On 11 October 2024, Mr Arama was convicted of:(i)conspiracy to take a detained person in company with intent to obtain advantage and intending to pervert the course of justice, for which he was sentenced to an aggregate term of imprisonment of 2 years and 10 months; and(ii)a tax fraud conspiracy against the Commonwealth and attempting to pervert the course of justice, for which he was sentenced to an aggregate term of imprisonment of 3 years and 2 months.[9][8] Ibid, 302-303.[9] Ibid, 133-134.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering these matters, I am satisfied the character concerns arising from Mr Arama’s serious conduct weigh against revoking the Visa cancellation decision.Legal consequences of the decision Under s 7.(2) of the Direction, ‘other considerations’ are generally to be given less weight than ‘primary considerations’. No protection issues have been raised or arise in this case. The legal consequence of non-revocation of the Visa cancellation decision is that Mr Arama will become an unlawful non-citizen. Once he is released from prison, he will be liable to be held in immigration detention, pending removal from Australia under s 198 of the Act. Once removed from Australia, it is very unlikely he will be permitted to return. These are the legal consequences of the policy underlying the character provisions of the Act which apply in all cases of this kind where the decision-maker is not satisfied of the matters set out in s 501CA(4)(b) of the Act. It is Mr Arama’s contention he is an Australian. This has not yet been tested. The facts necessary to trigger automatic acquisition of Australian citizenship under s 12 of the 2007 Act are not presently made out. I understand the Minister’s Department is undertaking an assessment process to determine if there are grounds on which Mr Arama can be taken to have acquired Australian citizenship by operation of law. As this matter is subject to the time limit set out in s 500(6L) of the Act, it is not possible to await the outcome of this assessment process. All this notwithstanding, I am satisfied the legal consequences of a decision not to revoke the cancellation of Mr Arama’s Visa weigh against in favour of doing so, but not heavily.Extend of impediments if removed Consideration of the impediments a non-citizen would face should they be removed from Australia to their home country is required under s 9.2 of the Direction:(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: a) the non-citizen's age and health; b) whether there are substantial language or cultural barriers; and c) any social, medical and/or economic support available to them in that country. Mr Arama contends Ms Heta and their children might face mental health issues if the family is forced to separate. I treat this submission as applying to Mr Arama as well. He asserts he has no close family or social supports in New Zealand. Mr Arama submits it is unfair to force the family to separate. I am satisfied, as a New Zealand citizen, it is likely Mr Arama will be able to access community, medical and welfare supports in New Zealand if he requires them. He has two children residing in New Zealand and, by his own account, he knows people residing in New Zealand, including Ms Heta’s parents and members of his extended family related to his biological and step-parents.

Ratio Decidendi

Legal Principle Established

The Minister asserts there are no business considerations and, overall, the consideration weighing against revocation outweigh those weighing in favour of revocation of the decision to cancel Mr Arama’s Visa.Consideration When considering whether there is another reason to revoke mandatory cancellation of a non-citizen’s visa, under the principle in s 5.1(3), the specific circumstances of the case must be considered.Protection of the Australian community The principles set out in s 5.2(2) and (3) of the Direction state that the safety of the Australian community is the highest priority of the Australian Government. The Direction states in s 8.1.(1), to that end, the Government is committed to protecting the community from harm resulting from criminal conduct or other serious conduct by non-citizens, and non-citizens who engage in criminal or other serious conduct should expect to be denied the privilege of remaining in Australia. Entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding and do not cause or threaten harm to individuals or the Australian community. These matters should be kept squarely in mind when considering protection of the Australian community. The the nature and seriousness of Mr Arama’s conduct to date is to be considered under s 8.1.1 of the Direction and the risk of harm to the Australian community should he engage in further serious conduct is to be considered under s 8.1.2.Nature and seriousness of conduct The following matters are set out in s 8.1.1:1In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following: (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community: (i) violent and/or sexual crimes; (ii) crimes of a violent nature against women or children, regardless of the sentence imposed; (iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed; (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious: (i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; (ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; (iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c)); (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again,, or an offence against section 197A of the Act, which prohibits escape from immigration detention; (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes; (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness; (e)the cumulative effect of repeated offending; (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour). (h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.