Cao and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 1853

Cao and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1853 (12 September 2025)

Applicant/s:  Yuehua Cao

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/4181

Tribunal:General Member J Papalia

Place:Perth

Date of decision:                 12 September 2025

Date of written reasons:     19 September 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 19 September 2025 at 1:22pm

CATCHWORDS

MIGRATION – visa cancellation – permanent resident visa – mandatory cancellation under s 501(3A) of Migration Act 1958 – where Applicant does not pass the character test – drug offending – prior visa cancellation– whether there is another reason to revoke cancellation – consideration of Direction no. 110 – protection of Australian community – strength, nature and duration of ties to Australia – best interests of minor children in Australia affected by the decision – whether Convention on the Rights of the Child would be contravened by expulsion of the Applicant - expectations of the Australian community – meaning of ‘crimes that are of serious international concern’ – legal consequences of decision – extent of impediments if removed –impact on Australian business interests- Applicant is a 54-year-old citizen of China – reviewable decision affirmed

LEGISLATION

Convention on Psychotropic Substances 1971, signed 21 December 1971, [1982] ATS 14 (entered into force 17 August 1982)

Convention on the Rights of the Child, signed 22 August 1990, [1991] ATS 4, (entered into force 16 January 1991)

Criminal CodeAct 1995 (Cth)

Criminal Property Confiscation Act 2000 (WA)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Misuse of Drugs Act 1981 (WA)

Sentence Administration Act 2003 (WA)

United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed 20 December 1988, [1993] ATS 4, (entered into force 14 February 1993)

CASES

Re PGQM and Minister for Immigration and Citizenship [2025] ARTA 1245

Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582

Re Scott and Minister for Immigration and Citizenship [2025] ARTA 997

NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582

RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

SECONDARY MATERIALS

Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Cth)

Statement of Reasons

The decision in this matter was made on 12 September 2025 and provided to the parties with a note that written reasons would be provided within a reasonable time.[1] These are those written reasons.

THE APPLICATION

  1. The Applicant, Ms Cao, is a Chinese national who seeks review of a decision dated 18 June 2025, not to revoke the mandatory cancellation of her permanent resident visa.[2] This is the second time that Ms Cao’s permission to remain in this country has been cancelled.[3] For the following reasons, the Tribunal is not satisfied…

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AGLC
Cao and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1853
Case
[2025] ARTA 1853
Decision Date

CaseChat Overview and Summary

Ms Cao, a 54-year-old citizen of China, has appealed the Minister for Immigration and Citizenship's decision to affirm the cancellation of her permanent resident visa under section 501(3A) of the Migration Act 1958. The Tribunal was required to consider the merits of Ms Cao's application to revoke the cancellation decision, focusing on whether there were reasons to revoke the cancellation under section 501CA(4) of the Migration Act. This required the Tribunal to evaluate the character test, the impact on the Australian community, and the best interests of Ms Cao's minor children who reside in Australia.

The court examined the mandatory cancellation criteria, particularly focusing on Ms Cao's drug offending and prior visa cancellation. The Tribunal considered whether the cancellation decision aligned with the objectives of the Act, including the protection of the Australian community and the maintenance of the visa system's integrity. Furthermore, the Tribunal assessed Ms Cao's ties to Australia, her family's presence, and the potential contravention of the Convention on the Rights of the Child if she were expelled. The Tribunal also deliberated on the expectations of the Australian community concerning criminal conduct and the implications of deporting someone with ties to the country.

In its decision, the Tribunal concluded that the mandatory cancellation decision was justified given Ms Cao's criminal history, particularly her drug-related offences, and her failure to demonstrate substantial change in character or circumstances warranting revocation. The Tribunal found that the potential risk to the Australian community and the need to uphold the integrity of the visa system outweighed the personal circumstances and ties to Australia. The Tribunal also noted that the best interests of Ms Cao's minor children did not provide sufficient grounds for revoking the cancellation decision.

The final orders of the Tribunal were to affirm the Minister's decision to maintain the visa cancellation, ensuring that Ms Cao's visa remains cancelled and she is subject to the legal consequences of her actions under Australian immigration law.

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

On 31 July 2024, Ms Cao’s permanent resident visa,[68] which had been granted in February 2023 (prior to the return trip to China), was mandatorily cancelled under s 501(3A) of the Migration Act (second cancellation decision).[69] She was notified of the second cancellation decision and invited to make representations seeking revocation. [68] Being a Class BB Subclass 155 Five Year Resident Return (permanent) visa; rather than the former Class BC Subclass 100 Partner (permanent) visa, which had been cancelled in 2019 and restored in 2020. [69] See Exhibit 1, pp 143-150. On or about 29 August 2024,[70] Ms Cao made representations seeking revocation.[71] Ms Cao briefed the same law firm to assist her with that application.[70] See Exhibit 1, p 36 [3]. [71] See Exhibit 1, pp 68-137. On 18 June 2025, a delegate of the Respondent (Minister) refused to revoke the second cancellation decision under s 501CA(4) of the Migration Act (Non-Revocation Decision).[72] Notification was not effected until 23 June 2025.[73] [72] See Exhibit 1, p 33. [73] See Exhibit 1, pp 25-32. The Applicant sought review of the Non-Revocation Decision in this Tribunal, within time on 27 June 2025.[74] In accordance with s 500(6L) of the Migration Act, the Tribunal must determine the application by 15 September 2025. The decision was made on 12 September 2025, with reasons to follow shortly thereafter. [74] See Exhibit 1, p 9. THE HEARING The parties appeared in-person before the Tribunal on 1, 2, 4 and 9 September 2025. Ms Cao was brought up from Wandoo Rehabilitation Prison for that purpose. She was represented by Ms Briony Chen of Tang Law Pty Ltd. The Minister was represented by Mr Lucas Roosendaal of Sparke Helmore Lawyers. Throughout the hearing, the Tribunal was assisted by multiple NAATI accredited Mandarin interpreters, either in-person or by video-link. Both Ms Chen and Mr Roosendaal have tertiary qualifications in the Chinese language, and they were each able to raise any difficulties with the interpretation of the Applicant’s evidence as they arose. Any such difficulties were put to the respective interpreters for comment and the Tribunal is satisfied that the interpreting undertaken in this matter was competent and sufficiently adequate to enable the Applicant to give her evidence and present her case. The following documents were marked as exhibits: (a)Joint Hearing Bundle, including the parties’ respective written submissions (1,138 pages) (Exhibit 1);(b)DFAT Country Information Report for the People’s Republic of China dated 27 December 2024 (DFAT Report) (72 pages) (Exhibit 2);(c)Letter from Western Australia Police Force, Legal Services dated 4 August 2025 (three pages) (Exhibit 3);(d)‘Methamphetamine: Forms and Use Patterns’ (2006) National Drug and Alcohol Research Centre, University of New South Wales (two pages) (Exhibit 4);(e)Family Violence Restraining Order (FVRO) (Magistrates Court of Western Australia, Perth, MC/CIV/PER/RO/5732/2022) dated 30 November 2022 (seven pages) (Exhibit 5);(f)Extract from the Department of Home Affairs’ Integrated Client Service Environment, ‘Visa list’ for the Applicant dated 2 September 2025 (one page) (Exhibit 6); and(g)Department of Justice (WA), Wandoo Rehabilitation Prison Therapeutic Community Brochure dated 28 March 2025 (two pages) (Exhibit 7).

Ratio Decidendi

Legal Principle Established

On 7 February 2019, Ms Cao’s then partner visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (first cancellation decision).[42] She was notified of that decision by hand, at Bandyup Women’s Prison, and was invited to make representations seeking revocation of the first cancellation decision. [42] See Exhibit 1, pp 138, 869-873. On or about 11 February 2019, Ms Cao sought revocation of the first cancellation decision, with the assistance of her son and the law firm who presently represent her in this application.[43] This included statements and written submissions to the effect that:[i]f my visa is reinstated, I will never contemplate returning to this life I lived before my imprisonment. My family is worth more to me that all the money I would stand to make by selling drugs. The fact that I have put my presence in Australia in jeopardy by doing something like this just for money has deepened my feelings of shame, sadness and disappointment in myself. My family deserves better, and if I am given the opportunity, I will do better for their sake.[44] [43] See Exhibit 1, pp 875-915. [44] See Exhibit 1, p 889 [101]-[102]. Ms Cao claims that she did not understand the import of the first cancellation decision or the submissions she made about revocation of it. The Tribunal found that evidence to be entirely unconvincing. Ms Cao had the presence of mind to brief a Mandarin-speaking law firm to assist her with that process. She reportedly had, and continues to have, a reasonable grasp of spoken English (confirmed at the hearing before the Tribunal).[45] The contents of those representations unequivocally demonstrate that Ms Cao in fact understood the potential consequences of further criminal conduct with respect to the longevity of her permission to remain in this country.[46] [45] See Exhibit 1, pp 225, 429, 530, 555. [46] See also Exhibit 1, p 976. In the event, on 22 April 2020, the Minister decided to revoke the first cancellation decision.[47] Ms Cao was notified in multiple ways about that outcome, including by hand on 22 April 2020.[48][47] See Exhibit 1, pp 916-919. [48] See Exhibit 1, p 919. During the same time period, Ms Cao was separately being assessed for conditional release on parole. She attended an interview with the Department of Justice on 16 March 2020.[49] The authors of the parole assessment made the following risk assessment: Ms Cao’s offending behaviour appears to be linked with her substance abuse and poor cognitive skills. She appeared to accept limited responsibility for her actions, instead minimising and justifying her behaviour whilst externalising blame. During the interview, Ms Cao presented limited strategies to reduce her likelihood of re-offending and/or relapse to substance abuse, however verbalised her willingness to engage in any programmatic intervention deemed necessary. Ms Cao presented as motivated to comply with all obligations and requirements of any Parole Order imposed and it was acknowledged she has not previously been supervised by this Department. Ms Cao would likely benefit from psychological counselling, substance abuse counselling for relapse prevention intervention and gambling counselling. These interventions, in conjunction with urinalysis testing and brief intervention during supervision, would provide the basis for any plan management. …[50][49] See Exhibit 1, pp 537-540. [50] See Exhibit 1, p 539.