Coker and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 754

Coker and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 754 (12 June 2025)
Date:12 June 2025
Applicant/s:  Coker
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/2490

Tribunal:Senior Member T Tavoularis
Place:Brisbane
Date of Decision: 12 June 2025

Date of Written Reasons: 13 June 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), to set aside the decision under review made by a delegate of the Respondent on 18 March 2025 and substitute it with a decision to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
………………[SGD]…………
Senior Member T Tavoularis

Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY 444 Special Category (Temporary) visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct - the strength, nature and duration of ties to Australia – best interests of minor children in Australia - expectations of the Australian community – extent of impediments if removed - decision under review set aside
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Criminal Code Act 1899 (Qld)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison v Minister for Immigration and Citizenship (2009) 106 ALD 666
Khalil v Minister for Home Affairs (2019) 271 FCR 326
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Direction No 110 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Migration Regulations 1994 (Cth)
Statement of Reasons
INTRODUCTION

The Applicant’s visa[1] was mandatorily cancelled[2] on 30 July 2024. On 9 August 2024, she made the necessary representations in writing seeking revocation of that mandatory cancellation decision. By way of a decision made on 18 March 2025[3], a delegate of the Respondent Minister refused to revoke the mandatory cancellation decision. The Applicant now seeks merits review of this non-revocation decision in this Tribunal.
[1] Class TY 444 Special Category (Temporary) visa, hereinafter referred to as “the visa”.
[2] Pursuant to s 501(3A) of the Migration Act 1958 (Cth), hereinafter referred to as “the Act”.
[3] Pursuant to s 501CA(4) of the Act
The instant Hearing proceeded before me on 2 and 3 June, 2025 on an in-person basis. The Hearing received evidence from (1) the Applicant; (2) her husband, Mr Todd Coker; (3) her daughter, Ms Kelsi-Lee Coker; (4) her additional daughter, Ms Courtney Coker; (5) her son, Mr Peter Coker; and (6) the Clinical and Forensic Psychologist, Dr Luke Hatzipetrou. At the commencement of the Hearing, I…

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: Coker and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 754
Case: [2025] ARTA 754
Decision Date: 12 June 2025

CaseChat Overview and Summary

In the case of Coker and Minister for Immigration and Multicultural Affairs, the Federal Court was tasked with reviewing the decision to not revoke the mandatory cancellation of a Class TY 444 Special Category (Temporary) visa for the applicant. The central issue was whether the Minister for Immigration and Multicultural Affairs erred in deciding that the applicant did not pass the character test and whether there were other reasons to revoke the mandatory cancellation decision. The court considered various factors, including the applicant's criminal history, ties to Australia, and the impact on her minor children.

The legal issues at the heart of this case revolved around the interpretation and application of Ministerial Direction No. 110 in the context of the mandatory cancellation of the applicant's visa. The court had to determine whether the Minister had correctly applied the principles outlined in the Direction, particularly the primary consideration of protecting the Australian community from criminal or other serious conduct by non-citizens. Additionally, the court examined the relevance of other considerations, such as the strength, nature, and duration of the applicant's ties to Australia, and the best interests of her minor children.

In its reasoning, the court found that the applicant did not pass the character test due to her substantial criminal record, which included a five-year and three-month custodial sentence for fraud. The court then turned to the Direction's principles and examined whether there were other reasons to revoke the mandatory cancellation decision. The court concluded that the Minister had failed to adequately consider the primary consideration of protecting the Australian community, as well as other relevant factors such as the applicant's ties to Australia and the impact on her children. Consequently, the court set aside the decision under review and remitted the matter to the Minister for reconsideration in light of the court's findings.

The court's final orders were that the decision to not revoke the mandatory cancellation of the applicant's visa be set aside, and the matter be remitted to the Minister for reassessment in accordance with the court's reasons.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant told the instant hearing that if returned to the community, she will immediately assume a very much “hands-on” role in assisting her children – particularly her two daughters – who each have very young children of their own. This is necessitated by the financial position of her two daughters. Both daughters are in relationships where they and their partners must both work. Kelsi-Lee, her partner and their two year old daughter (Child L) currently reside with the Applicant and her husband (Todd) in their large five bedroom home in suburban Brisbane. They are in the process of building a home of their own which is expected to be completed by March next year. At that time, the other daughter, Courtney, her partner and their now eight week old baby (Child K) will move into the home of Todd and the Applicant so they too can save for a home of their own.The clinical evidence There two clinical opinions in the material. The first is that of Dr James Freeman dated 24 January 2024 and which was obtained for the purposes of the Applicant’s sentencing a month later on 27 February 2024. As I have noted earlier, the learned sentencing Judge appears to have accepted the submission from the Prosecutor about receiving the Applicant’s extreme claims of having suffered childhood trauma “……with a large handful of salt because they were such extreme claims with no form of corroboration at all,….” As I have alluded to earlier, I will also approach these claims with a similar degree of caution and circumspection. I therefore discount as unreliable any claim of childhood trauma now being a dispositive explanation for the conduct resulting in the Applicant’s incarceration. The other predispositive factor propounded by the Applicant involved alleged bullying she experienced in the workplace of Max Solutions. She also reported this factor to Dr Freeman. She said the bullying started in 2017 when she was moved into the finance team at Max Solutions. Dr Freeman noted “More specifically, she reported being exposed to increasing levels of emotional distress at her place of employment (e.g., perceived levels of emotional bullying, demanding vocational roles, etc)…..”[32] She attributed the increased levels of workplace emotional distress to apparently being “…..”asked to find out how to improve efficiency [within the company’s accounting system]……they ignored me and dismissed all my suggestions.” “[33] I am hard-pressed to understand how, if at all, a rejected suggestion in a given workplace could so severely impact a person’s psychopathology such as to place them on a path towards a gambling addiction that, in turn, spawned a fraud on almost $400,000 on that employer.[32] R1, p 110, [3.2].[33] R1, p 111, [3.4]. Note reader: this is Dr Freeman quoting the Applicant in his report based on what he recorded her telling him during their consultation. The other facet of the claimed workplace bullying involved a claim that she was being personally attacked and ridiculed in the Max Solutions workplace because of what she described as “Dumping Syndrome” disorder. Dr Freeman recorded this: “She reported that her level of distress was further amplified by ongoing difficulties with a “Dumping Syndrome” disorder, involving unexpected rapid gastric emptying of the bowels e.g., “I was a mess. By the time I got to work, I was thinking about hurting myself – driving my car into a tree. Then there were comments [from staff] about the smell, the accidents. I wasn’t eating or sleeping a lot.” ”[34] She repeated this evidence at the instant Hearing. Again, I have difficulty attaching credibility to this evidence. Most workplaces nowadays have “end of trip” facilities (or equivalent) where employees can shower after riding a bicycle to work. It stretches credibility to suggest Max Solutions did not have at last some facility allowing the Applicant to clean up after any such inadvertent or accidental soiling. There are surely perfumed wipes (or equivalent) available from a pharmacy for this type of thing as I am almost certain would be available to, for example, a patient carrying a colostomy bag. The Applicant could have surely had an emergency change of clothes available to change into after any such incident. [34] R1, p 110-111, [3.2]. Note reader: this is Dr Freeman quoting the Applicant in his report based on what he recorded her telling him during their consultation.

Decision

Reasons for decision

The Applicant does not pass the character test as a matter of law.[5] On 27 February 2024, the Brisbane District Court imposed a head custodial term of five years and three months on the Applicant upon a conviction of “fraud – dishonestly gain benefit / advantage by employee value of at least $100,000.”[6] The Applicant has therefore received a sentence of imprisonment of 12 months or more[7] and thus has a “substantial criminal record”[8] which, in turn, compels this Tribunal to find she does not pass the character test. [5] Harrison v The Minster for Immigration and Citizenship (2009) 106 ALD 666 at [63]. [6] Pursuant to s 408C(1) the Criminal Code Act 1899 (Qld).[7] Section 501(7)(c) of the Act. [8] Section 501(6)(a) of the Act. Is there another reason why the Decision to cancel the Applicant’s visa should be revoked? In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa,[9] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110[10] has application.[9] Pursuant to section 501C(4) of the Act.[10] Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA. I will hereinafter refer to Direction 110 as “the Direction.” For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles found in paragraph 5.2 of the Direction are as follows:(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2) The safety of the Australian Community is the highest priority of the Australian Government.(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.

Ratio Decidendi

Legal Principle Established

I will now consider each of these primary and other considerations as may be relevant to the instant facts. Before doing so, I will note (and find) – consistent with the positions of the parties expressed in their respective Statements of Facts Issues and Contentions (“SFIC”) and / or their oral submissions at the instant Hearing that Primary Consideration 2 “family violence” and Other Considerations (a) “legal consequences of the decision” and (c) “impact on Australian business interests” are not relevant to determination of the instant application.[11][11] For the Applicant’s position, see A1, p 8, [50], [72]-[78]. For the Respondent’s position, see R3, p 9, [40]; p 12, [57]; p 13, [64]. PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider: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. I will consider each in turn.The nature and seriousness of the Applicant’s conduct to date When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:(i) violent and/or sexual crimes;(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;(f)the cumulative effect of repeated offending;(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.The Applicant’s offending in Australia and New Zealand: an overview