Carruthers and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1730

Carruthers and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1730 (8 September 2025)

Decision and
Reasons for Decision
Applicant /s:  John Barry Carruthers
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2025/4175

Tribunal:Senior Member K. Raif
Place:Sydney
Date:8 September 2025
Decision:The Tribunal affirms the decision under review.

Statement made on 08 September 2025 at 3:32pm

Catchwords
MIGRATION – Mandatory cancellation of Applicant ’s Class BS Spouse visa – Ministerial Direction 110 Applied – Applicant does not pass character test – Substantial criminal record – drug-related and weapons offending - whether there is another reason to revoke cancellation – decision under review affirmed.
Legislation
Migration Act 1958 (Cth), ss 501(6), 501(7)(c), 501CA (4),501 CA (4)(b)(ii)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Uelese v Minister for Immigration and Border Protection [2016] FCA 348Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’)
BACKGROUND

This is an Application for review of a decision of the delegate of the Minister for Immigration (‘the Respondent’) not to revoke the mandatory cancellation of a Class BS (Spouse) visa previously held by the Applicant.
The Applicant is a national of the UK, born in July 1969. The Applicant travelled to Australia in October 2005 (having previously made a short visit) and was subsequently granted a Spouse visa. He has been convicted of multiple offences set out below. Notably, in June 2024 the Applicant was convicted of offences ‘supply prohibited drug >= commercial quantity’ and ‘possess unauthorised pistol’ for which he was sentenced to a term of imprisonment. On 22 August 2024 the Applicant’s visa was mandatorily cancelled. In September 2024 the Applicant made representations to revoke the cancellation and on 20 June 2025 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant seeks review of that decision.
The Applicant appeared before the Tribunal on 1 September 2025. For the following reasons, the Tribunal has concluded that the decision dated 20 June 2025 not to revoke the cancellation of the Applicant’s visa should be affirmed.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
(3A) The Minister must cancel a visa that has been granted to a person if:
(i)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of…

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: Carruthers and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1730
Case: [2025] ARTA 1730
Decision Date: 8 September 2025

CaseChat Overview and Summary

In the matter of Carruthers and Minister for Immigration and Citizenship, the Federal Circuit and Family Court of Australia was required to review a decision to cancel the Applicant's Class BS Spouse visa under Ministerial Direction 110. The Applicant, who has a substantial criminal record involving drug-related and weapons offences, contested the decision, arguing for reasons to revoke the cancellation. The central issue before the court was whether there were sufficient grounds to revoke the visa cancellation, considering the character test and other relevant factors.

The court meticulously evaluated various considerations, including the protection of the Australian community, the nature and seriousness of the Applicant's criminal conduct, and the risk of reoffending. It found that the Applicant's criminal history, involving serious drug and weapons offences, indicated a significant risk to the community. The court also considered the Applicant's ties to Australia, including his family and social contributions, as well as the potential impact on his minor child. While acknowledging these ties, the court concluded that the risk to the community and the expectations of the Australian public weighed heavily against revoking the cancellation.

Ultimately, the court affirmed the decision to cancel the Applicant's visa, determining that the Applicant's ongoing risk to the community and lack of genuine remorse outweighed the personal and social ties he had in Australia. The court recognised the adverse impact on the Applicant's family, particularly his minor child, but found that the best interests of the child were best served by maintaining the visa cancellation. The court also noted the intended consequences of the decision, which include the Applicant remaining in detention until removal from Australia and being barred from obtaining other Australian visas in the future.

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

There is no evidence before the Tribunal to indicate that a decision not to revoke the cancellation of the Applicant’s visa would significantly compromise the delivery of a major project or of an important service in Australia. This consideration is neutral. CONCLUSION The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked. The Tribunal has determined that the Applicant continues to present a risk to the community. The Applicant’s continuous denial of any knowledge of the criminal engagement, his blaming of others indicate to the Tribunal that despite his claimed rehabilitation, the Applicant lacks insight into his offending and that his remorse may not be genuine. The Tribunal has formed the view that the offending has been serious, that there remains a real (and above minimal) risk of reoffending and that there could be significant harm to the community if the Applicant were to commit other offences of similar nature. The Tribunal finds that the protection of the community and expectations of the community weigh very strongly against the revocation. The Tribunal accepts that the Applicant has strong ties in Australia, most notably, the presence of his two children. He also has some social and community ties, having previously worked and otherwise contributed to the community. The Tribunal accepts that the Applicant’s removal from Australia may have an adverse impact on the Applicant’s family and friends. This consideration weighs in favour of the revocation. The Tribunal gives significant weight to the best interests of the Applicant’s minor son. There is evidence before the Tribunal about the impact of separation on the child and there is evidence concerning the child’s mental health. While the Tribunal accepts the Respondent’s submission that the child’s mental health may have been impacted by any number of factors unrelated to the Applicant, the Tribunal generally accepts that it is in the best interests of the child to have the stable family support and guidance that the Applicant is willing to provide. The Tribunal finds that the best interests of the child are such that the cancellation should be revoked and this consideration is given significant weight in favour of the revocation. The Applicant has not committed family violence. There is no evidence of any impact on a business. These considerations are neutral. The legal consequence of the decision not to revoke would be such that the Applicant will remain in detention until his removal from Australia and he will not have the opportunity to be granted other Australian visas in the future. These are the intended consequences of the decision not to revoke. The Tribunal gives this consideration very limited weight in favour of the revocation. The Tribunal accepts that there may be a significant impediment to the Applicant if he is removed from Australia. This is because the Applicant has been living away from UK for about 20 years and while there may not be any language or cultural barriers, the Tribunal accepts that the Applicant will need time to secure accommodation, employment and arrange other aspects of daily life and that he might have little or no family and social support in achieving these goals. These considerations also weigh in favour of the revocation and the Tribunal gives these considerable weight.

Ratio Decidendi

Legal Principle Established

The Tribunal’s considerations are set out below with regard to Direction 110.Primary considerations 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 The Direction provides that violent crimes, crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed) are viewed very seriously by the Australian Government and the Australian community. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequently of the non-citizen’s offending and/or whether there is any tread of increasing seriousness. In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the Police Facts Sheets, court documents and sentencing remarks, where available (while acknowledging the applicant’s evidence that he did not agree to the agreed statements of facts). There are before the Tribunal the sentencing remarks of Judge Abadee DCJ dated 7 June 2024. His honour referred to the offences as supply of prohibited drug (483 g of methylamphetamine) and possession of unauthorised prohibited firearm (gel blaster firearm) and several additional offences, including possession of unauthorised prohibited firearms / weapons (colt handgun, concealed blades, multi-edged knife and knuckle-dusters). It relation to the offending, His Honour stated that the Applicant and his co-offenders were identified as being involved with a group distributing drugs in the local area and, in particular, the Applicant was used as a courier for supply on the Central Coast. It is stated that there were two broad categories of supplies relating to the Applicant, first featuring actual couriering of Ice and one attempt to courier Ice and the second featuring a singular supply of Ice which was delivered by the Applicant. It is stated that the total quantity of drugs supplied by the Applicant during this period was 483 g of Ice.