Brown and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1555

Brown and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1555 (28 August 2025)
Applicant:Marcello Brown
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4174
Tribunal:General Member J Cipolla
Place:Sydney
Date:28 August 2025
Decision:The decision not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Resident return visa is affirmed.

…………[SGD]…………………
General Member J Cipolla
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class BB Subclass 155 Five Year Resident Return visa – substantial criminal record – aggravated carjacking-assault-family violence-Decision under review not to revoke the cancellation of the Applicant’s Subclass 155 Five Year Resident Return visa is affirmed.
LEGISLATION
Migration Act 1958 (Cth) s 501CA (4)
CASES
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
JYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 3617
FYBR v Minister for Home Affairs [2019] FCAFC 185
Irving V Minister (1996) FCA 663
SECONDARY MATERIALS
Direction No. 110, Visa cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
STATEMENT OF REASONS
BACKGROUND

Mr Marcello Brown (the Applicant) was born in the United Kingdom on 25 May 1999.
The Applicant arrived in Australia with his family (his parents and two sisters) in 2014 as a 15-year-old and has resided in Australia since that time.
The Applicant’s mother and two sisters are Australian citizens. They are currently residing in the United Kingdom where they hold citizenship.
The Applicant’s parents separated in 2016.
The Applicant has a history of abusing alcohol, cannabis, LSD and methyamphetamines.
The Applicant in a statement to the Department seeking revocation of the cancellation of his visa outlined a history of abuse that he suffered at the hands of his father as a child, and as a teenager, a history that he claims triggered a decent into drug abuse.
The Applicant claims his early life was compromised by the emotional and physical abuse that he experienced from his father.
The Applicant states that:
“my anger stemmed from being beaten, slapped, poked, pushed, dragged & bruised by my dad. He would drink heavily and abuse me till I cried. He verbally put me down/degraded me too. He would tell me to “man up” and called me a “pussy”. This went on well into my teens. I was too embarrassed and scared to speak to anybody about what went on. As a result, as the years went on, I became more and more angry and hurt inside. I suffered mentally, psychologically too. I lacked confidence, self-esteem, self-worth and depression. My drug and alcohol use stems from being homeless. I ran away from home as I couldn’t stand my father’s abuse any longer. I met a woman significantly my senior, who was struggling too. She introduced me to substances and at first it took away my internal pain but then soon enough my use became out of control.…

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: Brown and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1555
Case: [2025] ARTA 1555
Decision Date: 28 August 2025

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal involves an Applicant whose Class BB Subclass 155 Five Year Resident Return visa was cancelled due to a substantial criminal record. The Applicant sought to have this decision reviewed, arguing for the revocation of the visa cancellation. The Tribunal was tasked with determining whether there was another reason to revoke the cancellation under s 501CA(4)(b)(ii) of the relevant legislation. The Applicant, who was unrepresented and did not submit a statement to the Tribunal, was considered to have a history of dishonesty and violence, including family violence. This history included 20 convictions since 2020, with a particularly serious incident in June 2023 where the Applicant was convicted of aggravated carjacking, theft, and obtaining financial advantage by deception, among other charges.

The Tribunal considered the Respondent's submissions, which emphasised the Applicant's lack of remorse, significant risk of reoffending, and the serious nature of his criminal history. The Tribunal was particularly influenced by the primary consideration of protecting the Australian community, given the Applicant's history of dishonesty, violence, and family violence. The Respondent's evidence highlighted the Applicant's high risk of reoffending as assessed by a psychologist and the absence of any community support for the Applicant. The Tribunal was also mindful of the Applicant's breaches of bail and the seriousness of his offending, as evidenced by the lengthy sentence imposed by the Melbourne County Court.

The Tribunal concluded that there was no other reason to revoke the visa cancellation. It found that the primary consideration of protecting the Australian community weighed heavily against a decision to revoke the cancellation. The evidence of family violence, combined with the Applicant's history of criminal offending, indicated a significant and unacceptable risk to the community. Consequently, the decision not to revoke the cancellation of the Applicant’s visa was affirmed.

The Tribunal's decision was based on the weight of the primary consideration and the evidence of the Applicant's substantial criminal record, including family violence and a high risk of reoffending. The Tribunal did not find any other reason to revoke the visa cancellation, and therefore, the decision was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant was not represented in the proceedings before the Tribunal, and did not submit a statement to the Tribunal in support of his review application. However as referenced the Applicant did provide the Department with the Personal Particulars form dated 4 October 2024 and a handwritten statement to the Department dated 10 March 2025. These documents have been duly considered by the Tribunal for the purposes of this review and referenced above.RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS The Respondent’s representative provided a statement of facts issues and contentions (SFIC) to the Tribunal dated 21 July 2025 which has been duly considered. The Respondent noted that the Applicant did not pass the character test on the basis of him having a substantial criminal record. The Respondent identified that the respective issue for the Tribunal to determine is whether there is another reason why the cancellation should be revoked under s 501CA(4)(b)(ii) of the Act. Having regard to the first primary consideration, the protection of the Australian community, the submission notes that the Applicant’s criminal history reveals offending that involves dishonesty and violence and includes family violence. The Applicant’s history also indicates breaches of bail, and a community-based sentence imposed by the courts. The submission notes that on 6 June 2023 the Applicant was convicted in the Melbourne County Court on charges of aggravated carjacking, theft and obtain financial advantage by deception. The submission refers to the details of the offending which are captured in the Tribunal’s summary of the Applicant’s offending history above. The submission notes that Judge Chambers found the offending to be “undeniably serious”. The submission notes that the Applicant was sentenced to a period of 3 years and 8 months imprisonment for the above offences and that imprisonment is the last resort in the sentencing hierarchy indicative of the seriousness of the offending. The submission notes that the Applicant had amassed 20 convictions since 2020 and the cumulative effect of the Applicant’s offending was a further indicator of its seriousness. The Respondent submits that the risk of the Applicant engaging in further offending is both significant and unacceptable for a range of reasons. The Applicant did not present any evidence of remorse at his sentencing hearing before Judge Chambers in the County Court of Victoria. The Applicant did not enter a guilty plea until late in the proceedings. The Applicant was assessed by a psychologist at the time of his sentencing, Ms Gina Cidoni, as presenting a high risk of reoffending based on an assessment conducted on 11 May 2023. The Applicant had developed a substantial methamphetamine habit in the community. The Applicant had provided scant evidence of community support that he would receive if released into the community and noted that no family or friends had provided letters of support on his behalf.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Consequently, the Tribunal is not satisfied that there is another reason to revoke the visa cancellation.DECISION The decision not to revoke the cancellation of the Applicant’s Class BB Subclass Five Year Resident Return visa is affirmed.

Ratio Decidendi

Legal Principle Established

Primary Consideration 1 weighs very heavily against a decision to revoke the cancellation. PRIMARY CONSIDERATION 2: FAMILY VIOLENCE The evidence before the Tribunal indicates that the Applicant entered into a relationship as a young adult with his ex-partner who was 12 years his senior. The evidence suggests that the Applicant engaged in this relationship as a mechanism of escaping from the dysfunction that he experienced whilst living with his father. The evidence indicates that during the course of this relationship the Applicant was introduced to a range of illicit drugs including methamphetamines and LSD and that he developed a drug addiction during the course of the relationship. The evidence before the Tribunal indicates that there were two instances of family violence perpetrated by the Applicant against his former partner. The evidence before the Tribunal indicates that the Applicant committed the offence of recklessly causing injury to his ex-partner on 24 April 2020. The evidence as discussed indicates that on the day in question, the Applicant and his former partner were arguing with the victim demanding that he leave the property. The Applicant placed his hands over the victim’s mouth to stop her raising her voice, a scuffle ensued, and the Applicant slapped the victim and told her to stop screaming. The evidence referenced at page 225 of the joint tender bundle indicates that the Applicant placed his fingers into the victim’s mouth and pushed her tongue causing bleeding from the pressure. The altercation was only disrupted when a neighbour overheard the incident. The Applicant broke a window as he left the premises, and the evidence indicates that the victim urinated herself during the incident due to her fear. The second incidence of family violence offending perpetrated by the Applicant against his ex-partner occurred on 27 December 2020 and is referenced in a report by Mr Dominguez at page 225 of the joint tender bundle. The evidence indicates that the victim believed that her cat was missing and sent a text message to the Applicant asking him whether he had taken the cat. In due course the victim allowed the Applicant to enter her property, she believed he was going to reveal the whereabouts of the cat. The victim and the Applicant and the victim’s minor son attempted to look for the cat. When the cat could not be retrieved, the Applicant followed the victim and her son back to her apartment at which time the victim took her son into a bedroom where they both sat against a door to attempt to prevent the Applicant from entering the bedroom. The Applicant waited in the lounge room at the premises. When the victim eventually exited the bedroom and entered the lounge room it caused the victim’s son to phone the victims 24-year-old daughter for assistance. The Applicant proceeded to grab the victim and pin her to the couch, pinching her arms and scratching her face and body at which time the Applicant knocked out one of the victim’s bottom teeth and caused bruising to her legs and torso. The Applicant stole the victim’s phone so she could not call the police. The victim’s minor son jumped onto the Applicants back and sprayed wipe cleaner into his eyes. The Applicant continued to assault the victim until such time as her minor son went to a neighbour for assistance. The Applicant fled the premises taking the victim’s keys, speaker and her phone. The Applicant when apprehended and interviewed by the police refused to make a statement however, he did acknowledge that he had broken a family violence intervention order.