Clemas and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1663

Clemas and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1663 (3 September 2025)
Applicant:Barry Francis Tea-Ata-In Clemas
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4051
Tribunal:General Member J Cipolla
Place:Sydney
Date:3 September 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the cancellation of the Applicant’s visa.

………………[SGD]………………………
General Member J Cipolla
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class TY Subclass 444 Special Category (temporary) visa – substantial criminal record – supply prohibited drug-commercial quantity -sets aside the decision under review there is another reason to revoke the cancellation.
LEGISLATION
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth) s 501CA
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 663HZCP v Minister (2018) FCA 1803
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)
National Drug Strategy 2017-2026, Department of Health
STATEMENT OF REASONS
BACKGROUND

Mr Barry Francis Tea-Ata-In Clemes (the Applicant) was born in the New Zealand on 28 June 1965.
The Applicant is an identical twin and apart from his twin brother, he has three brothers and a sister. The Applicant’s three brothers and sister all reside in Auckland, New Zealand. The Applicant’s twin brother resides in Australia.
The Applicant’s parents are deceased.
The Applicant advised that his twin brother moved to Australia in 1998, and that he relocated to Australia in 2000.
The Applicant met his ex-partner Ms Grima in 2006. Ms Grima is an Australian citizen and at the time she and the Applicant met, Ms Grima was a single mother of triplets, who were then aged 11.
The Applicant and Ms Grima have a son together, Master K, who was born on 3 September 2008. The Applicant states that he co-parented Ms Grima’s triplet daughters.
In 2013 the Applicant and Ms Grima separated, however, the Applicant claims that the relationship he has with Ms Grima is a positive one, and that they shared the upbringing of Master K. The Applicant stated that he would have his son every second weekend and share school holidays and that they would spend significant times together such as Christmas and birthdays. The Applicant claims that the triplets consider him to be a father figure. The Applicant claims to pay child support to Ms Grima with respect to their son.
The Applicant claims to have a close relationship with his twin brother, and they have lived together in Sydney.
The Applicant claims that since his relocation to Australia in 2000 that he had worked across a range of industries and had…

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: Clemas and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1663
Case: [2025] ARTA 1663
Decision Date: 3 September 2025

CaseChat Overview and Summary

Clemas sought a review of the decision to cancel his Class TY Subclass 444 Special Category (temporary) visa. The decision to cancel the visa was based on a substantial criminal record, including the supply of a commercial quantity of a prohibited drug. The Tribunal was tasked with determining whether there was another reason to revoke the cancellation of the visa. The key issue before the Tribunal was whether there existed another reason to revoke the cancellation of the Applicant's visa under section 501CA(4)(b)(ii) of the Act. This required the Tribunal to consider the relevant mandatory considerations outlined in Ministerial Direction 110, particularly the primary considerations related to the protection of the Australian community and the strength, nature, and duration of ties to Australia.

The Tribunal found that the primary consideration of the protection of the Australian community, as outlined in Ministerial Direction 110, did not outweigh the other considerations in this case. The Applicant's criminal history was indeed serious, but the Tribunal considered other factors, including the Applicant's remorse, rehabilitation, and the impact of the decision on his immediate family members. The Tribunal was persuaded that there were sufficient grounds to revoke the visa cancellation, particularly given the strong ties the Applicant had to his family in Australia, including his biological son, stepchildren, twin brother, and ex-wife, all of whom reside in Australia. The Tribunal set aside the decision under review and substituted it with a decision that there was another reason to revoke the cancellation of the Applicant's visa.

The final orders of the Tribunal were that the decision to cancel the Applicant’s Class TY Subclass 444 Special Category (temporary) visa be set aside. In its place, the Tribunal decided that there was another reason to revoke the cancellation of the visa. The Tribunal's decision recognised the Applicant's serious criminal history but balanced this against his family ties in Australia and other mitigating factors. This outcome highlights the importance of considering both criminal conduct and personal circumstances in decisions affecting visa status.

Orders

Orders of the court

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Background

Background to the litigation

On 11 June 2025 the delegate decided that there was no other reason or reasons to revoke the cancellation having regard to the considerations in Ministerial Direction 110.APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS The Tribunal received a statement of facts issues and contentions from the Applicant, which is dated 4 August 2025, prepared by the Applicant’s legal representative Ms Milojkovic. The submission has been duly considered. The submission notes that the Applicant does not dispute his extensive criminal record, however, contrary to the delegate’s statement of reasons with respect to the cancellation, the submission notes that the Applicant’s New Zealand offending occurred in June 2003 and that he was not incarcerated but served a term of imprisonment via home detention. The submission notes that the Applicant does not dispute that he has a criminal record in Australia that spans from 2006 to 2023 with the most recent offending resulting in a term of imprisonment. The submission refers to the Applicant’s Australian offending history. The submission notes that the Applicant pleaded not guilty to the charge of supplying a commercial quantity of a prohibited drug namely methylamphetamine, however, he was found guilty by a jury and subsequently convicted in the District Court at Wollongong. It notes that the Applicant became eligible for parole on 5 July 2025 and that his parole period is set to expire on 5 July 2026 and that the Applicant is subject to strict parole conditions that he must comply with during the period of parole. The submission notes that the sole determinative issue before the Tribunal is whether there is another reason to revoke the original decision to cancel the Applicant’s subclass 444 visa (s 501CA(4)(b)(ii) of the Act). The submission notes that in making a decision on review the Tribunal must have regard to the relevant mandatory considerations reflected in Ministerial Direction 110. With respect to primary consideration 1, protection of the Australian community the submission notes that the Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. The submission notes that the Applicant concedes that his criminal history includes very serious offending including drug, dishonesty and driving offences in Australia. Further the direction requires the Tribunal to turn its mind to consider the risk to the Australian community which requires an assessment of potential future harm, repeat serious offences, offences that cause substantial harm and the likelihood of further offending. The submission concedes that the Applicant’s criminal history is characterised by very serious offending. Having regard to risk the submission states that the Tribunal should have consideration to the Applicant’s remorse and the Applicant’s rehabilitation. The Applicant in the submission states that he does not fully agree with the findings of Dr Klammer, the psychologist who provided a report to the District Court.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the comprehensive reasons that the Tribunal has provided the Tribunal is satisfied that there is another reason to revoke the visa cancellation.DECISION The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the cancellation of the Applicant’s visa.Hearing Dates 26 and 27 August 2025Ms W J Milojkovic Solicitor for ApplicantMr J Fyfe Solicitor for Respondent

Ratio Decidendi

Legal Principle Established

Primary Consideration 2 is not relevant and accordingly is given neutral weight.PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA Having regard to this primary consideration Direction 110 states the following:(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. (2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. The Tribunal must (8.3(1)) consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. The evidence before the Tribunal indicates that the Applicant’s biological son (a minor), adult stepchildren, identical twin brother, and ex-wife (with whom he co-parents their son) reside in Australia. The evidence indicates that the Applicant’s son and stepchildren are Australian citizens, his twin brother is a permanent resident, and his ex-wife is an Australian citizen. The evidence before the Tribunal indicates that the Applicant is very close to his biological son who is 16 years old and was born, raised and educated in Australia. The evidence indicates that the Applicant’s son is currently undertaking a plumbing apprenticeship. The Applicant’s son gave heartfelt evidence to the Tribunal with respect to the closeness of the relationship that he has with his father. Evidence was provided to the Tribunal by the Applicant, his son, and the Applicant’s ex-wife Ms Grima that in the event that the Applicant is released into the community that their son will live between his parents. The evidence indicates that the Applicant is close to his stepchildren, particularly Rhiannon, and evidence was provided at hearing indicating that the Applicant played a strong parental role in their upbringing after forming a relationship with their mother.