Chow and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 1048

Chow and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1048 (2 July 2025)

Applicant/s:   Mark Chor Zhen Chow

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/3153

Tribunal:Senior Member Lyford

Place:Perth

Date of Decision:                2 July 2025

Date of Written Reasons:   17 July 2025

Decision:The Tribunal affirms the decision under review.

....................[SGD].................................

Senior Member

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – Stealing as a Servant – Australian companies as part of the Australian community - risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community – best interests of minor children – Applicant is a 39-year-old citizen of Singapore – extent of impediments if returned to Singapore – Non-revocation Decision is affirmed

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth)

Corporations Act 2001 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Au v Minister for Immigration, Citizenship and Multicultural Affairs  [2022] FCAFC 125

Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561

BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 608

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338

LQZW and Minister for Home Affairs (Migration) [2019] AATA 93

Minister for Immigration Multicultural Affairs v Ali (2000) 106 FCR 313

Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667

Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84

NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1

Ng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4962

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

PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666

Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [140]

Siale v Minister for Immigration and Citizenship [2025] FCA 608 at [34]

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

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146

Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203

SECONDARY MATERIALS

Constitution of the Republic of Singapore

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)

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AGLC
Chow and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1048
Case
[2025] ARTA 1048
Decision Date

CaseChat Overview and Summary

The Applicant, a 39-year-old citizen of Singapore, sought review of the Minister’s decision to not revoke the cancellation of his permanent visa. The Applicant had been convicted of two counts of ‘Stealing as a Servant’ under Western Australian law, resulting in sentences totaling over six years of imprisonment. This led to the mandatory cancellation of his visa under section 501(3A) of the Migration Act 1958 (Migration Act). The key issues for the Tribunal were whether the Applicant passed the ‘character test’ and if there were any other reasons for revoking the visa cancellation decision. The Tribunal considered the legislative framework, particularly the definition of the ‘character test’ and the considerations outlined in Direction No 110.

The Tribunal assessed the Applicant’s criminal history, his ties to Australia, and the impact of his potential deportation on both himself and his family. It examined the nature and seriousness of the criminal offences, the risk he posed to the Australian community, and the strength of his ties to Australia, including his employment, family, and community involvement. The Tribunal also considered the best interests of his minor children and the potential impediments to his return to Singapore.

After reviewing the evidence, the Tribunal concluded that the Applicant did not pass the ‘character test’ due to his substantial criminal record. However, the Tribunal found that there were no other reasons to revoke the visa cancellation decision. The primary consideration of protecting the Australian community outweighed the other factors considered under Direction No 110. The Tribunal found that the risk the Applicant posed to the community, given his criminal history and the nature of his offences, was too significant to warrant revocation of the visa cancellation.

In light of the above, the Tribunal affirmed the Minister’s decision not to revoke the visa cancellation. The Applicant’s appeal was dismissed, and the cancellation of his visa remained in effect.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal affirms the decision under review.PROCEDURAL BACKGROUND The Applicant is a 39-year-old citizen of Singapore (born on 2 May 1986). Between 24 August 1991 and 6 November 2005, the Applicant arrived in, and departed from, Australia on three separate occasions on Visitor visas for a maximum of one week. The Applicant arrived in Australia, and remained in Australia, on a permanent basis from 10 February 2007 (then aged 20 years old). On 5 April 2024, the Applicant appeared in the Perth District Court of Western Australia and was convicted of two counts of ‘Stealing as a Servant’, under s 378(7) of the Criminal Code (WA), for which he received sentences of 4 years and 11 months imprisonment (cumulative from 15 March 2024) and 2 years imprisonment (concurrent from 15 March 2024). On 29 October 2024, the Applicant was notified that his Visa had been cancelled under s 501(3A) of the Migration Act on the basis that he had a ‘substantial criminal record’, within the meaning of s 501(6)(a) of the Migration Act, and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the State of Western Australia (Cancellation Decision). The Applicant acknowledged receipt of the Cancellation Decision on the same date. On 6 November 2024, the Applicant requested revocation of the Cancellation Decision, under s 501CA(4) of the Migration Act (Revocation Request), and provided the Department with a completed ‘Personal Circumstances Form’ with his representations in support of revocation of the Cancellation Decision . On 25 November 2024, the Applicant’s lawyers, Munro Doig Lawyers, provided the Department with submissions in support of the Revocation Request. On 8 April 2025, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (Non-revocation Decision). On 9 April 2025, the Applicant was notified of the Non-revocation Decision. On 15 April 2025, the Applicant applied to the Tribunal for review of the Non-revocation Decision.ISSUES The issues for the Tribunal are:(a)whether the Applicant passes the ‘character test,’ as defined in s 501(6) of the Migration Act; and(b)if not, whether there is ‘another reason’ why the Visa Cancellation Decision should be revoked under s 501CA(4) of the Migration Act, having regard to the considerations prescribed by Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110).LEGISLATIVE FRAMEWORKThe ‘character test’ The ‘character test’ is defined in s 501(6) of the Migration Act. Relevantly, a person will not pass the ‘character test’ if they have a ‘substantial criminal record’: s 501(6)(a) of the Act. The phrase “substantial criminal record” is defined in s 501(7) of the Migration Act and includes circumstances in which a person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Migration Act.

Evidence

Evidence Before The Court

Section 7 of Part 2 of Direction 110 provides:(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.(2) The primary consideration at 8.1….(protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than other considerations.(3) One or more primary considerations may outweigh other primary considerations.(emphasis added)THE HEARING AND THE EVIDENCE The hearing took place at the Tribunal’s Perth Registry over four days, namely 19, 20, 23, and 24 June 2025. Both parties were represented. The Applicant’s representative (Mr Matthew Crowley) attended the hearing in person and the Respondent’s representative (Ms Caitlin White) appeared remotely, via Microsoft Teams. The following documents were marked as “Exhibits” (and will be referred to, where relevant, in the reasons below):(i)joint Hearing Book, filed by the Respondent on 17 June 2025 and comprising 956 pages, was marked as ‘Exhibit 1’ (Exhibit 1);(ii)Government of Western Australia Department of Justice Individual Management Plan for the Applicant, dated 26 November 2024, was marked as ‘Exhibit 2’ (Exhibit 2); and(iii)Government of Western Australia Department of Justice Corrective Services ‘Visits History’ (date range: 15 March 2024 to 15 May 2025) Wooroloo Prison Farm, for the Applicant, was marked as ‘Exhibit 3’ (Exhibit 3). Exhibit 1 includes the following documents provided by the parties’ representatives (which will be referred to, where relevant, in the reasons below):(i)Applicant’s Statement of Facts, Issues and Contentions, dated 26 May 2025 (Exhibit 1 at pp 344-370) (Applicant’s SFIC);(ii)Respondent’s Statement of Facts, Issues and Contentions, dated 10 June 2025 (Exhibit 1 at pp 256-274) (Respondent’s SFIC); and (iii)Applicant’s Submissions in Reply – Pursuant to Directions of Senior Member Lyford Made 5 June 2025, undated (Exhibit 1 at pp 477-492) (Applicant’s SIR). Exhibit 1 also includes the following Statutory Declarations, Witness Statements and letters in support of the Applicant (which will be referred to, where relevant, in the reasons below);(i)Applicant – Statutory Declaration, dated 22 November 2024 (Exhibit 1 at pp 114-124), Witness Statement, dated 20 May 2025 (Exhibit 1 at pp 371-375), and unsigned Supplementary Witness Statement, dated 16 June 2025 (Exhibit 1 at pp 928-935);(ii)Ms S Siew, Applicant’s wife – Statutory Declaration, dated 22 November 2024 (Exhibit 1 at pp 138-147), Witness Statement, dated 21 May 2025 (Exhibit 1 at pp 376-385), and Witness Statement, dated 16 June 2025 (Exhibit 1 at p 936);(iii)Ms A Siew, Ms P Siew’s sister/the Applicant’s sister-in-law - Statutory Declaration, dated 25 November 2024 (Exhibit 1 at pp 194-196), and Witness Statement, dated 23 May 2025 (Exhibit 1 at pp 386-389);(iv)Mr D Siew, Ms P Siew’s brother/the Applicant’s brother-in-law - Statutory Declaration, dated 23 November 2024 (Exhibit 1 at pp 190-192), and Witness Statement, dated 18 May 2025 (Exhibit 1 at pp 390-393);(v)Mr D Lee, the Applicant’s friend from Kingdomcity Church - Statutory Declaration, dated 21 November 2024 (Exhibit 1 at pp 181- 183), and Witness Statement, dated 21 May 2025 (Exhibit 1 at pp 394-398);(vi)Ms C Yee, the Applicant’s friend from Kingdomcity Church - Statutory Declaration, dated 22 November 2024 (Exhibit 1 at pp 201-202), and Witness Statement, dated 22 May 2025 (Exhibit 1 at pp 403-406);(vii)Mr S Tan, the Applicant’ friend from Zion Praise Harvest church and Ms C Yee’s husband - Statutory Declaration, dated 22 November 2024 (Exhibit 1 at pp 185-187), and Witness Statement, dated 20 May 2025 (Exhibit 1 at pp 399-402);(viii)Mr L Koh, the Applicant’s friend from Kingdomcity Church - Statutory Declaration, dated 25 November 2024 (Exhibit 1 at pp 198-199), and Witness Statement, dated 16 May 2025 (Exhibit 1 at pp 407-409);(ix)Mr A Oh, the Applicant’s friend from Zion Praise Harvest Church and business partner in Sycamore Wealth Pty Ltd - Statutory Declaration, dated 11 March 2025 (Exhibit 1 at pp 210-212);(x)Mrs L Theeart, Senior Chaplain and Child Safety Officer of Rehoboth Christian College, the school the Applicant’s children attend – letter in support, dated 5 March 2025 (Exhibit 1 at pp 208-209) and Witness Statement, dated 19 May 2025 (Exhibit 1 at pp 410-413);(xi)Mr D Geijsman, Principal of Rehoboth Christian College, the school the Applicant’s children attend – letter in support, dated 18 November 2024 (Exhibit 1 at pp 204-205);(xii)Mr J Kirtisingham, Lead Pastor, Perth of Kingdomcity Australia Ltd, the church the Applicant, Ms S Siew and their children attend - letter in support of the Applicant, dated 19 November 2024 (Exhibit 1 at pp 206-207);(xiii)Mr S Ng, Applicant’s treating Clinical Psychologist – letter, dated 8 February 2024 (Exhibit 1 at pp 219-220), report (regarding Ms S Siew), dated 21 May 2025 (Exhibit 1 at pp 434-437), report (regarding the Applicant’s children), dated 21 May 2025 (Exhibit 1 at pp 438-441) and report (regarding the Applicant), dated 3 June 2025 (Exhibit 1 at pp 588-595); and(xiv)Mr O Robinson, Applicant’s accredited mental health social worker – report, dated 7 February 2024 (Exhibit 1 at pp 216-218)

Decision

Reasons for decision

On 8 April 2025, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (Non-revocation Decision). On 9 April 2025, the Applicant was notified of the Non-revocation Decision. On 15 April 2025, the Applicant applied to the Tribunal for review of the Non-revocation Decision.ISSUES The issues for the Tribunal are:(a)whether the Applicant passes the ‘character test,’ as defined in s 501(6) of the Migration Act; and(b)if not, whether there is ‘another reason’ why the Visa Cancellation Decision should be revoked under s 501CA(4) of the Migration Act, having regard to the considerations prescribed by Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110).LEGISLATIVE FRAMEWORKThe ‘character test’ The ‘character test’ is defined in s 501(6) of the Migration Act. Relevantly, a person will not pass the ‘character test’ if they have a ‘substantial criminal record’: s 501(6)(a) of the Act. The phrase “substantial criminal record” is defined in s 501(7) of the Migration Act and includes circumstances in which a person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Migration Act. Pursuant to s 501(3A)(a)(i) and (b) of the Migration Act, 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 they have a ‘substantial criminal record’, as defined in s 501(7)(c) of the Migration Act, and is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State, or a Territory. That is, failure of the ‘character test,’ in s 501(6) of the Migration Act, arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63]. Power to revoke original decision When a visa is mandatorily cancelled under s 501(3A) of the Migration Act, the Minister must:(i)give the person concerned written notice of the decision which sets out the original decision: s 501CA(3)(a)(i) of the Migration Act; (ii)give the person concerned particulars of the relevant information: s 501CA(3)(a)(ii) of the Migration Act; and(iii)invite the person to make representations to the Minister regarding the revocation of the original decision: s 501CA(3)(b) of the Migration Act. Under s 501CA(4) of the Migration Act, the Minister may revoke the original (visa cancellation) decision if:(a)representations have been made by the applicant in accordance with an invitation to make such representations about revocation of the cancellation: s 501CA(4)(a) of the Act; and(b) the Minister is satisfied that:(i)the person passes the ‘character test’ in s 501(6) of the Migration Act: s 501CA(4)(b)(i) of the Migration Act; or, if not,(ii)there is ‘another reason’ why the original decision should be revoked: s 501CA(4)(b)(ii) of the Migration Act.

Ratio Decidendi

Legal Principle Established

The Applicant seeks review of a decision of a delegate of the Minister under s 501CA(4) of the Migration Act 1958 (Migration Act), dated 8 April 2025, not to revoke the mandatory cancellation of the Applicant’s Resident Return (Class BB) (Subclass 155) visa (Visa) under s 501(3A) of the Migration Act. For the following reasons, the Tribunal affirms the decision under review.PROCEDURAL BACKGROUND The Applicant is a 39-year-old citizen of Singapore (born on 2 May 1986). Between 24 August 1991 and 6 November 2005, the Applicant arrived in, and departed from, Australia on three separate occasions on Visitor visas for a maximum of one week. The Applicant arrived in Australia, and remained in Australia, on a permanent basis from 10 February 2007 (then aged 20 years old). On 5 April 2024, the Applicant appeared in the Perth District Court of Western Australia and was convicted of two counts of ‘Stealing as a Servant’, under s 378(7) of the Criminal Code (WA), for which he received sentences of 4 years and 11 months imprisonment (cumulative from 15 March 2024) and 2 years imprisonment (concurrent from 15 March 2024). On 29 October 2024, the Applicant was notified that his Visa had been cancelled under s 501(3A) of the Migration Act on the basis that he had a ‘substantial criminal record’, within the meaning of s 501(6)(a) of the Migration Act, and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the State of Western Australia (Cancellation Decision). The Applicant acknowledged receipt of the Cancellation Decision on the same date. On 6 November 2024, the Applicant requested revocation of the Cancellation Decision, under s 501CA(4) of the Migration Act (Revocation Request), and provided the Department with a completed ‘Personal Circumstances Form’ with his representations in support of revocation of the Cancellation Decision . On 25 November 2024, the Applicant’s lawyers, Munro Doig Lawyers, provided the Department with submissions in support of the Revocation Request. On 8 April 2025, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (Non-revocation Decision). On 9 April 2025, the Applicant was notified of the Non-revocation Decision. On 15 April 2025, the Applicant applied to the Tribunal for review of the Non-revocation Decision.ISSUES The issues for the Tribunal are:(a)whether the Applicant passes the ‘character test,’ as defined in s 501(6) of the Migration Act; and(b)if not, whether there is ‘another reason’ why the Visa Cancellation Decision should be revoked under s 501CA(4) of the Migration Act, having regard to the considerations prescribed by Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110).LEGISLATIVE FRAMEWORKThe ‘character test’ The ‘character test’ is defined in s 501(6) of the Migration Act. Relevantly, a person will not pass the ‘character test’ if they have a ‘substantial criminal record’: s 501(6)(a) of the Act. The phrase “substantial criminal record” is defined in s 501(7) of the Migration Act and includes circumstances in which a person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Migration Act.