Brennan and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 2198

Brennan and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2198 (20 October 2025)
Applicant/s:  Dylan Travis Brennan
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4527
Tribunal:Senior Member K Rosser
Place:Sydney
Date:20 October 2025
Decision:The decision under review is affirmed

...............[SGD]...............
Senior Member K Rosser
CATCHWORDS
MIGRATION – Cancellation of a Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) – where the applicant does not pass the character test – whether there is another reason to revoke the cancellation – Direction No 110 - protection of the Australian Community – expectations of the Australian Community – interests of minor children – legal consequences of decision under review - impediments
LEGISLATION
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)
Migration Act1958 (Cth)
Migration Regulations1994 (Cth)
CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FHHM v Minister for Immigration [2022] FCAFC 19
Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration [2018] FCA 594
SECONDARY MATERIALS
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

These reasons for decision concern an application for review of a decision made by a delegate of the Minister on 28 July 2025 not to revoke the mandatory cancellation of the applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa (visa). The applicant is a national of New Zealand and the delegate’s decision was made under s 501CA(4) of the Migration Act 1958 (Cth) (Act)
The applicant’s visa was cancelled on 12 August 2024 because the delegate found that the applicant had a substantial criminal record and because he was serving a sentence of imprisonment on a full-time basis in South Coast Correctional Centre in New South Wales, for an offence against a law of the Commonwealth, a State or a Territory. In relation to this, on 10 May 2024, the applicant was convicted in the District Court of New South Wales at Parramatta of robbery in company, for which he was sentenced to a term of imprisonment of two years to be served by way of Intensive Correction Order (ICO). While serving the ICO, the applicant was convicted on 5 July 2024 of four counts of Shoplifting value <=$2000 and sentenced to a term of imprisonment of three months in respect of each conviction, to be served concurrently.
On 4 September 2024, the applicant made representations seeking revocation of the delegate’s decision. The applicant provided further material in support of the revocation request in February and April 2025.
On 28 July 2025, the applicant was notified of the delegate’s decision not to revoke the cancellation of his…

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: Brennan and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2198
Case: [2025] ARTA 2198
Decision Date: 20 October 2025

CaseChat Overview and Summary

The applicant, a 29-year-old New Zealand-born man of Māori descent, moved to Australia in 2011. He challenges a decision by the Minister for Immigration and Citizenship to refuse to revoke a cancellation of his Special Category (Temporary) visa under section 501CA(4) of the Migration Act 1958 (Cth). The applicant contends that the Minister erred in not revoking the cancellation of his visa, arguing that his rehabilitation and changed circumstances warrant reconsideration. The Tribunal's task was to determine whether the Minister's decision not to revoke the visa cancellation was lawful, focusing on whether there were other reasons to revoke the decision aside from the character test.

The central legal issue was whether the Minister's decision not to revoke the visa cancellation was lawful. This involved assessing the Tribunal's jurisdiction, the seriousness of the applicant's criminal conduct, his prospects for rehabilitation, and the impact of the decision on his immediate family members in Australia, particularly his minor daughter. The Tribunal also had to consider Direction No 110, which outlines factors relevant to the protection of the Australian community and the interests of minor children.

The Tribunal found that the Minister's decision not to revoke the visa cancellation was lawful. The Tribunal determined that the applicant's extensive criminal history, history of substance abuse, and early stage of rehabilitation indicated that the risk to the Australian community was significant. While the applicant had shown some remorse and a desire to turn his life around, his past conduct and current circumstances did not provide sufficient assurance that he would not reoffend. The Tribunal also considered the impact of the decision on the applicant's minor child, finding that the protection of the Australian community and the interests of the child weighed against revoking the visa cancellation. The Tribunal concluded that there were no other reasons to revoke the decision, as the applicant had not demonstrated sufficient rehabilitation or changed circumstances to warrant reconsideration.

The Tribunal dismissed the application, affirming the Minister's decision not to revoke the cancellation of the applicant's visa. The Tribunal found that the applicant's criminal history, history of substance abuse, and current stage of rehabilitation did not provide adequate grounds for revoking the visa cancellation. The Tribunal also concluded that the protection of the Australian community and the interests of the applicant's minor child supported maintaining the cancellation.

Orders

Orders of the court

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Background

Background to the litigation

The following background is taken largely from the parties’ SOFICs,[1] the sentencing judge’s remarks[2] and from other material contained in the Exhibits. This material includes but is not limited to the applicant’s statement[3] and a report dated 10 April 2024 prepared by Mr Andrew Wong, forensic psychologist,[4] which was before the sentencing judge.[1] JTB 228-242 and 252-278.[2]. JTB 243-251.[3] JTB 63-66.[4] JTB 163-166Personal background The applicant is 29 years old, having been born in Hamilton, New Zealand in 1996. He is of Maori background. The applicant moved to Australia in 2011, when he was almost 15 years old. At that time the applicant’s parents already lived in Australia with his younger sisters. The applicant’s brother came to Australia shortly thereafter. The applicant’s immediate family members in Australia are his parents (Jason Brennan and Lorna Mahara), his brother (Shaun) and his two younger sisters. These are Ashlee and a sister who is a minor, referred to in these reasons for decision as N. The applicant was raised in an impoverished home environment, and told Mr Wong that his parents struggled to make ends meet. The applicant remembered having insufficient food to eat. He stated that his family lived in an unsafe neighbourhood, where gangs and criminal behaviour were prevalent. In his report Mr Wong described the applicant as ‘traumatised, poorly socialised, and gullible’.[5] Mr Wong stated that the applicant’s thought pattern was simple, that he rarely articulated complex thinking, which suggested poor educational outcome or possible cognitive impairments.[5] JTB at 164 The applicant told Mr Wong that from around the age of six he began leaving home and would be escorted home by police almost every night until he moved to Australia. He stated that he disliked being home due to sexual abuse by his uncle. He sought safety through older anti-social groups including organised criminals, where he was ordered to engage in various criminal activities, such as breaking into cars, breaking into houses, and violent assaults. According to Mr Wong's report, child protection services became involved when the applicant was 13 years of age. He was then placed in the care of his grandparents. However, the applicant told Mr Wong that he continued to associate with criminal gangs until his family moved to Australia in 2011. After moving to Australia, the applicant lived with his family in the Campbelltown area. The applicant disclosed to Mr Wong that he was sexually abused by an uncle when he was four to five years old [6]. He told Mr Wong that the incident happened at his home when his parents were not present. He also reported that he had been sexually abused by a worker in a juvenile detention centre when he was 16 years old.[6] JTB at 166 According to the applicant, he received poor grades at school and struggled to read until he was incarcerated, when he independently improved his reading fluency. The applicant attended special education classes in high school, due to learning difficulties. After moving to Australia, the applicant attempted Year 10 in a mainstream school but was expelled for fighting with another student within six months of enrolment.

Evidence

Evidence Before The Court

The Tribunal has jurisdiction to review a decision made under s 501CA(4) to refuse to revoke a decision to cancel a visa under s 501(3A) if the application for review is lodged within nine days after the decision is notified: s 500(6B). As the application for review was lodged on 5 August 2025, which is within nine days after the decision was notified, the Tribunal has jurisdiction to hear and determine the application. EVIDENCE AND SUBMISSIONS The following material was included in the Joint Tender Bundle (JTB), the Supplementary Bundle (SB) prepared by the Minister and the applicant’s Tender Bundle (ATB):(a)The applicant’s statement of facts, issues and contentions (SOFIC) - Exhibit A1(b)The applicant’s statement (unsigned but apparently made on 9 September 2025) - Exhibit A2(c)Mr Shaun Brennan’s statutory declaration dated 23 September 2025 - Exhibit A3(d)Ms Lorna Mahara’s statutory declaration dated 23 September 2025 - Exhibit A4(e)The Minister’s SOFIC – Exhibit R1(f)The Minister’s Tender bundle – Exhibit R2(g)The Minister’s Supplementary Bundle – Exhibit R3(h)The G-documents – Exhibit G In addition to the above material, I have also considered:(a)The oral evidence given by the applicant and his witnesses; and (b)The closing oral submissions made by the parties’ representatives. Relevant parts of the documentary evidence, the oral evidence and the submissions are referred to below. BACKGROUND The following background is taken largely from the parties’ SOFICs,[1] the sentencing judge’s remarks[2] and from other material contained in the Exhibits. This material includes but is not limited to the applicant’s statement[3] and a report dated 10 April 2024 prepared by Mr Andrew Wong, forensic psychologist,[4] which was before the sentencing judge.[1] JTB 228-242 and 252-278.[2]. JTB 243-251.[3] JTB 63-66.[4] JTB 163-166Personal background The applicant is 29 years old, having been born in Hamilton, New Zealand in 1996. He is of Maori background. The applicant moved to Australia in 2011, when he was almost 15 years old. At that time the applicant’s parents already lived in Australia with his younger sisters. The applicant’s brother came to Australia shortly thereafter. The applicant’s immediate family members in Australia are his parents (Jason Brennan and Lorna Mahara), his brother (Shaun) and his two younger sisters. These are Ashlee and a sister who is a minor, referred to in these reasons for decision as N. The applicant was raised in an impoverished home environment, and told Mr Wong that his parents struggled to make ends meet. The applicant remembered having insufficient food to eat. He stated that his family lived in an unsafe neighbourhood, where gangs and criminal behaviour were prevalent. In his report Mr Wong described the applicant as ‘traumatised, poorly socialised, and gullible’.[5] Mr Wong stated that the applicant’s thought pattern was simple, that he rarely articulated complex thinking, which suggested poor educational outcome or possible cognitive impairments.[5] JTB at 164

Decision

Reasons for decision

Taking into account Mr Wong’s report and the evidence concerning the degree of rehabilitation achieved, I find that the likelihood of the applicant engaging in further criminal or other serious conduct is moderate.Conclusion in relation to protection of the Australian community I have found that the applicant’s offences are serious. I accept that should the applicant again engage in similar conduct the resulting harm to an individual and more broadly to the Australian community would be serious. I consider that the risk that he will re-offend is moderate. I accept that the applicant has demonstrated remorse. However, the applicant has a long history of substance abuse, which has been central to his offending. He has been diagnosed with substance abuse disorders, as well as with post-traumatic stress disorder. While I accept that the applicant has not consumed cannabis or other illicit drugs since his incarceration, until recently the applicant was taking a prescribed opioid substitute. The applicant’s evidence at the hearing was that he stopped taking this prescription drug not on medical advice but because he wants to be drug-free. His abstinence from drugs and alcohol has not been tested in the community. I accept that the applicant genuinely wants to turn his life around, to obtain treatment, to not take illicit drugs, to not abuse alcohol and to not commit crimes. However, the evidence indicates that the applicant fell back into a daily drug habit and excessive alcohol consumption when under stress because of the death of his grandfather. The available evidence does not lead me to conclude that this would not happen again if the applicant was once more in a stressful situation. Overall, I consider that it is too early to find that the applicant has achieved substantial rehabilitation. Rather, his rehabilitation is at an early stage. The view of the Government is that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I have had regard to 8.1.2(1), which states that ‘[s]ome conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable’. I do not consider that this is such a case because taken individually none of the applicant’s crimes is at the serious end of the scale. However, in view of the applicant’s extensive criminal record, history of entrenched substance abuse and early stage of rehabilitation, I conclude that protection of the Australian community weighs strongly against revoking the cancellation of the applicant’s visa. Family Violence – 8.2 The applicant has not committed a family violence offence. This consideration is neutral. The strength, nature and duration of ties to Australia – 8.3 In accordance with 8.3(1) of the Direction, I have considered the impact of the decision on the applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

Ratio Decidendi

Legal Principle Established

The convictions and sentence that are particularly relevant to this decision are the offences of which the applicant was convicted on 10 May and 5 July 2024. However, the delegate had regard to the applicant’s conviction for affray in 2016 and 2023, as well as his convictions for the offence of Robbery in company on 10 May 2024, as representative of escalating criminal conduct. The delegate also had regard to the frequency of the applicant’s offending, taking into account the totality and cumulative effect of his offending conduct.Conduct in prison and immigration detention Evidence was provided concerning the applicant’s conduct while in prison. The following incidents and resulting punishments are recorded in records held by NSW Corrective Services:[8]·December 2015 – Give False Misleading Info – punished by 56 days good behaviour·June 2016 – Assaults – punished by 7 days in cells·August 2023 – Intimidation – punished by reprimand and caution·August 2023 – Possess Offensive Weapon – punished by 21 days off by-ups·October 2023 – Create Possess Prohibited Goods – punished by reprimand and caution[8] JTB 95 – 96. Material provided by the respondent indicates that that two conduct issues have been recorded since the applicant has been in immigration detention. These are the discovery of home brew in the applicant’s room at the detention centre and the applicant being involved in a physical altercation with another detainee.[9][9] JTB 99 –100.Legislative framework Section 501 of the Act deals with decisions to cancel a visa on character grounds. Relevantly to this case, under s 501(3A) the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more. In accordance with s 501CA(3), as soon as practicable after making a decision under s 501(3A), the Minister must give the person whose visa was cancelled written notice setting out the decision together with particulars of specified information that were the reason or part of the reason for making the decision. The Minister must also invite the person whose visa was cancelled to make representations to the Minister about revocation of the decision. Under s 501CA(4) the Minister may revoke the original decision if representations are made in accordance with the invitation and the Minister is satisfied that the person passes the character test (as defined by s 501) or that there is another reason why the original decision should be revoked. An application to review a decision made under s 501CA(4) not to revoke the cancellation of a visa may be made to the Tribunal under s 500(1)(ba). The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1).