Belmont and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2025] ARTA 322

Belmont and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 322 (2 April 2025)
Applicant:BELMONT, John Rudolf Dansel
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2023/1242

Tribunal:Senior Member Hon J Rau SC
Place:Adelaide Registry
Date:02/04/2025
Decision:The decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked.

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Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of TY Subclass 444 Special Category (temporary) visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – family violence - drug and alcohol abuse – whether the original visa cancelation under section 501CA(4) should be revoked – consideration of Ministerial Direction No. 110 – decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 50
FYBR v Minister for Home Affairs [2019] FCAFC 185
Rana v Minister for Immigration, Citizenship and Multicultural Affairs (2023) AATA 1327
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).
REASONS FOR DECISION
Senior Member Hon J Rau SC
02 April 2025
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 27 February 2023,[1] not to revoke the mandatory cancellation of his TY Subclass 444 Special Category (temporary) visa (“the Visa”). The visa was cancelled on 9 November 2021 under section 501(3A) on the basis that he did not pass the character test.
[1] Exhibit 4: Remittal Bundle (G3), 10-26.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of being sentenced to 12 months imprisonment for various family violence related offences, on 23 September 2021.[2] This was not his first offence.
[2] Ibid (G4), 28.
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 17 and 18 March 2025. The Applicant was represented by Dr Jason Donnelly and the Respondent was represented by Ms Caitlin White of Sparke-Helmore.
The Applicant gave evidence by MS…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Belmont and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 322
Case: [2025] ARTA 322
Decision Date: 2 April 2025

CaseChat Overview and Summary

The case before the court involves the Applicant, a citizen of New Zealand, and the Minister for Immigration, Citizenship and Multicultural Affairs. The Applicant's visa under the Temporary Subclass 444 Special Category (temporary) visa was subject to mandatory cancellation under section 501(3A) of the Migration Act due to the Applicant's failure to meet the character test. The Applicant, who has a substantial criminal record, primarily due to drug and alcohol abuse and family violence, challenged the decision to cancel his visa. The Applicant argued that there were other reasons why the original visa cancellation decision should be revoked, particularly considering the impact on his children and his relationship with his former partner, TR.

The primary legal issues that the court needed to decide were whether the Applicant's visa cancellation should be revoked under section 501CA(4) of the Migration Act and whether the Tribunal should consider Ministerial Direction No. 110 in making this decision. The court had to assess the Applicant's substantial criminal record and whether there were other compelling reasons to revoke the original visa cancellation decision, such as the potential harm to the Applicant's children and his relationship with TR. The court also had to determine the appropriate weight to give to the Ministerial Direction in making its decision.

The court found that the Applicant did indeed have a substantial criminal record, which did not meet the character test. However, the court considered whether there were other reasons to revoke the original visa cancellation decision. The court was bound by s 499(2A) to comply with Ministerial Direction No. 110, which outlines principles for decision-making in visa refusal, cancellation, and revocation cases. The court examined the principles in paragraph 5.2 of the Direction, which emphasised Australia's right to determine entry and residence, the safety of the Australian community, and the nature of the Applicant's conduct. The court also considered the relationship between the Applicant and TR, as well as the impact on their children. The court concluded that the nature of the Applicant's conduct, particularly his history of drug and alcohol abuse and family violence, was so serious that strong countervailing considerations were insufficient to justify not revoking the visa cancellation. However, the court found that there were other compelling reasons to revoke the original visa cancellation decision, particularly the impact on the Applicant's children and his relationship with TR.

The court set aside the decision under review and substituted it with a decision that the cancellation of the Applicant’s visa is revoked. This decision was based on the specific circumstances of the Applicant's case, including the relationship with his former partner and the potential harm to their children if the Applicant were to be returned to the Australian community. The court's decision reflects a balanced approach, taking into account both the serious nature of the Applicant's conduct and the unique circumstances of his case.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant called TR, his former partner, and the mother of his 3 children. She gave evidence by phone due to technical issues with MS Teams Video. She was also a credible witness. She also gave evidence about her children and their relationships with the Applicant. She also talked about the contact that she and her children would be likely to have with the Applicant if he were to be returned to the Australian community. This relationship is a critical one in this case. The evidence of Dr Kwok identifies this relationship as a point of potential vulnerability for the Applicant. TR, like the Applicant, has a history of homelessness, drug addiction, alcohol abuse, family violence and petty crime. She is presently in recovery. Child protection services returned her children to her care in Easter 2024, after 2.5 years in foster homes. This is discussed further below.Background Facts The Applicant was born in New Zealand in 1977. He is a citizen of that country. He is now aged 47. The Applicant was associated with a criminal gang as a juvenile in New Zealand.[4] He was sent to “boot camp” for 6 weeks.[5] The Applicant told the Tribunal that gangs were commonplace where he grew up. Some of his extended family were also gang members. At one point in his evidence, he said that he left New Zealand to get away from the gang culture.[4] Exhibit 4: Remittal Bundle (G11), 55.[5] Ibid 688. The Applicant began drinking alcohol in his early teens. His drinking became worse over time. He accepts that he has a serious drinking problem.[6][6] Ibid 668, 674, 689. He first came to Australia for 12 days, and then later 5 days, in 1998.[7] [7] Ibid 348. He returned to Australia for almost a year in in 2002. He lived in Sydney.[8] [8] Ibid. The Applicant met TK in Sydney. He spent most of 2003 in Australia as well. He left on 29 December 2003.[9][9] Ibid 661. The Applicant and TK moved to Ireland.[10] They were married there. They have one child, HB.[11] HB is now an adult. He lives in Ireland.[12][10] Ibid 662.[11] Ibid.[12] Ibid. Their relationship failed, and after about 8 years, the Applicant returned to New Zealand early in 2011, for a few weeks.[13][13] Ibid 661-2. On 19 May 2011, the Applicant came to Australia.[14] He was almost 34 years old. He has lived here since then. Over the next few years, he travelled overseas for short periods, on numerous occasions.[15][14] Ibid.[15] Ibid 346-348. When asked about this he said that he mainly visited holiday destinations in Asia, although he did visit New Zealand for family events, like weddings. The Applicant went to Western Australia in search of work.[16] He did work in the mining industry, some of it on a fly-in, fly-out basis.[17] He seems to have been employed in various roles until about 2015-16, when he lost his job.[16] Ibid 348.[17] Ibid 662. The Applicant says that he started using methamphetamine when he was working at a mining camp in about 2012-2013. His use of the drug increased over time. He became a heavy user. He has described himself as a “drug addict”.[18] He told the Tribunal that his use was ongoing, when he could afford it.[18] Ibid 668.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.Is there another reason why the original decision should be revoked under section 501CA(4)? In considering whether to the original decision should be revoked, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[111] [111] On 21 June 2024, the former applicable direction, Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 110. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2)The safety of the Australian Community is the highest priority of the Australian Government. (3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. (7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

Ratio Decidendi

Legal Principle Established

On 29 July 2020, the Applicant reported to QLD Corrective Services. Their note says:"Substance Abuse Risk Note: First meeting with Mr Belmont. His presentation indicated that he could have been under the influence of a substance, mainly alcohol. At times he presented to be drowsy and his eyes appeared glazed. His mood fluctuated at times during the interview, to the point he was agitated.SCM asked about his substance use and he denied use of Ice, however admitted he uses alcohol in moderation and stated in the past he would rely on this substance as a coping mechanism. SCM enquired of recent use of alcohol and he stated he had a few drinks last night. This is an area to monitor during the course of supervision. SCM did wish to propose Drug Arm intervention, however due to his fluctuating mood it was not canvassed.Relationships Risk Note: Denied contact with partner, however admitted they would like to be together. Discussed the conditions of the DV Order and the impact he is does breach the conditions.”[69][69] Ibid 244-5. On 5 August 2020, the Applicant reported to QLD Corrective Services. Their note says:"PHONE CALL: Mr Belmont telephoned the office unscheduled. He advised he was phone reporting. SCM informed him his next phone report is on 25 August 2020. SCM noted there was children screaming in the background and he admitted he was spending time with his children. SCM enquired on whether he was also with (aggrieved) to which he stated he was as he was spending time with his children. He then stated he was "being good". SCM reiterated the importance of complying with his DV Order and he again stated he was "being good". It is noted the Order contains conditions that he not be within 100m of the aggrieved’ s residence or approach the aggrieved unless it is for when having contact with a child as set out in writing between the parties. SCM did not canvas these conditions with Mr Belmont at the time of the contact as they did not wish to elevate his mood. It is not known whether he was at the aggrieved’ s residence.”[70][70] Ibid 242-3. A report from the Brisbane Domestic Violence Service dated 13 October 2020 states:"On 31 August 2020, Mr Belmont attended his phone induction session of the program. Facilitators introduced the program and the expectations. Facilitators also went through the Participant Survey with Mr Belmont. When asked whether he agreed with the statement “My partner is equally at fault”, Mr Belmont laughed and said he ‘agreed’. This indicated to Facilitators the need to explore the use of minimisation/denial/blame with Mr Belmont throughout his time on program in order to assess his willingness to be accountable and take this necessary step for change.Due to Covid-19, Mr Belmont then attended his first program session which was phone-based on Thursday 10 September. Mr Belmont then failed to attend the next two sessions in a row, with 24 September expected to be his first face-to-face group. Both of these absences were unapproved.On 1 October 2020, Mr Belmont attended his first face-to-face group session. Facilitators observed Mr Belmont to laugh inappropriately when discussing the times he’s made his partner feel unsafe. He disclosed how he uses the hakka to intimidate his partner and get what he wants. This indicated to Facilitators the possibility for Mr Belmont to be able to name some of his abusive behaviours, however he showed limited insight around the harm of his attitudes and behaviours.On 7 October 2020, Mr Belmont’s Referring Officer advised BDVS would need to be excluded from the program due to instability around accommodation and employment, impacting on his decision whether to commit to the program. BDVS are in agreeance that it remains a goal for Mr Belmont to recommence a program once he has gained stability, so that he can continue addressing his use of violence and take the necessary steps to change. BDVS are of the opinion that Mr Belmont does still hold beliefs that support abusive attitudes and behaviours, and would benefit from completing a DV Program.”[71][71] Ibid 259.