Callow and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1243

Callow and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1243 (5 August 2025)

Decision and
Reasons for Decision
Applicant /s:  Debra Samantha Kim Callow
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2025/3677

Tribunal:Senior Member K. Raif
Place:Sydney
Date:5 August 2025
Decision:The Tribunal sets aside the decision under review and substitutes the decision that the discretion should not be exercised to refuse the visa to the visa applicant.

Statement made on 05 August 2025 at 1:19pm
Catchwords
VISITOR VISA – refusal to grant a Visitor visa – Visa Applicant did not satisfy the character test –Ministerial Direction No. 110 applied – whether Tribunal should exercise discretion to refuse to grant the Tourist visa – decision under review set aside.
Legislation
Migration Act 1958 (Cth)
Cases
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
FYBR v Minister for Home Affairs [2019] FCA 500
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Introduction

This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made on 22 April 2025 to refuse to grant a Visitor (Class FA) visa to the Visa Applicant.
The Visa Applicant is John Kennedy Lovelace, who is a national of the USA, born in January 1964. He made the application for the visa in October 2022. On 2 December 2024 the Visa Applicant was issued with a Notice of Intention to Consider Refusal (NOICR) of his visa under s. 501(1) of the Migration Act 1958 (Cth). The Applicant provided his responses to the NOICR. In April 2025 the delegate decided to refuse to grant the Visitor visa to the Applicant as the delegate determined that the Applicant did not pass the character test and exercised the discretion to refuse to grant the visa. The Visa Applicant’s Australian partner, Ms Debra Callow (the review Applicant) seeks review of the delegate’s decision.
The Review Applicant appeared before the Tribunal on 4 and 5 August 2025. The Tribunal also received oral evidence from the Visa Applicant and a number of character witnesses. The issues before the Tribunal are:
· whether the Visa Applicant passes the character test as required by section 501 of the Act and, if not
· whether the Tribunal should exercise its discretion to refuse to grant the Applicant the visa.
For the reasons set out below, the Tribunal has decided that the decision under review should be sets aside and substituted with the decision that the discretion to refuse to grant the visa should not be exercised.
Legislative framework
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
For the purposes…

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: Callow and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1243
Case: [2025] ARTA 1243
Decision Date: 5 August 2025

CaseChat Overview and Summary

In the matter of Callow and Minister for Immigration and Citizenship (Migration), the parties involved were a visa applicant, Callow, and the Minister for Immigration and Citizenship. The central issue was the refusal to grant a Visitor visa to Callow due to concerns about his character and suitability to enter Australia. The case was heard by the Migration Review Tribunal. The Tribunal was tasked with deciding whether the Minister's decision to refuse the visa should be upheld, particularly in light of Ministerial Direction No. 110, which provides guidelines for assessing the character of visa applicants.

The legal issues before the Tribunal included whether Callow satisfied the character test for the grant of a Visitor visa, as per the provisions of s. 501(7)(c) and the application of Ministerial Direction No. 110. The Tribunal also had to consider the discretion to refuse the visa, weighing the seriousness of Callow's criminal history, his rehabilitation, and the potential risk he posed to the Australian community against the arguments for granting the visa on compassionate and compelling grounds.

The Tribunal found that Callow had a substantial criminal record, having been convicted of serious offences in 2014 and 2015 and sentenced to terms of imprisonment exceeding 12 months. Despite this, the Tribunal considered the arguments presented by Callow's representatives that he had completed meaningful rehabilitation and had not reoffended since 2015. The Tribunal also took into account the claims of significant hardship to Callow's partner and the compassionate reasons for granting the visa. However, the Respondent argued that the seriousness and persistence of Callow's drug-related offences, along with his limited ties to Australia, necessitated the protection of the Australian community. Ultimately, the Tribunal decided that the discretion to refuse the visa should not be exercised, setting aside the Minister's decision and substituting it with a decision that the discretion should not be exercised in favour of refusal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to all the circumstances, the Tribunal has decided that the discretion to refuse to grant the visa should not be exercised.DECISION The Tribunal sets aside the decision under review and substitutes the decision that the discretion to refuse to grant the visa should not be exercised.

Ratio Decidendi

Legal Principle Established

Having regard to the above convictions, the Tribunal finds that in 2014 and 2015 the Applicant has been convicted of offences and sentenced to terms of imprisonment exceeding 12 months. The Tribunal finds that the Visa Applicant has a substantial criminal record as defined in s. 501(7)(c) and that he does not pass the character test. Consideration of discretion The Review Applicant claims that, essentially, that the risk of reoffending is minimal or remote ad not one that cannot be tolerated. The review applicant notes that the drug offending always related to personal use and not for sale, distribution etc and the Visa Applicant had not committed any other offences that are identified in the Direction as being serious. The Review Applicant submits that the offending must be viewed in context and that the circumstances that led to the offending no longer exist, with the Visa Applicant having completed meaningful rehabilitation. The Review Applicant claims that the Visa Applicant has rehabilitated and has not reoffended since 2015. The Review Applicant claims there would be significant hardship to her if the Visa Applicant’s visa is not granted and there are strong compassionate and compelling reasons for the grant of the visa given her personal circumstances. The Respondent submits that ere is no basis to exercise discretion in favour of the Visa Applicant. The Respondent refers to the seriousness and persistence of the Applicant’s drug-related offending involving repeated and sustained breaches of probation and court orders. The Respondent acknowledges the passage of time and the Visa Applicant’s claimed rehabilitation but states that the rehabilitative programs were not medically based. The Respondent submits that the protective factors may not be transferable to a new and unfamiliar environment such as Australia. The Respondent submits that the Visa Applicant’s limited ties in Australia, which are very limited, do not outweigh the seriousness of his offending or the need to protect the Australian community. Protection of the Australian Community Paragraph 8.1 of Direction 110 provides in part as follows:8.1 Protection of the Australian community (1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community. (2)Decision-makers should also give consideration to:a)the nature and seriousness of the non-citizen’s conduct to date; andb)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.The nature and seriousness of the Applicant’s conduct to date