Cook and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 21

Cook and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 21 (15 January 2025)

Applicant/s: Cassidy Paula Cook
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2024/8607
Tribunal:General Member K. Thornton
Place:Melbourne
Date:15 January 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that the decision cancelling the Applicant’s visa is revoked.

........................[SGD]................................................
General Member K. Thornton
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 of the mandatory cancellation of Applicant’s TY Subclass 444 Special Category (Temporary) visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – Substantial Criminal Record – Protection of the Australian Community – Strength Nature and Duration of Ties to Australia – Best Interests of Minor Children – Other considerations – Decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Dharma and Minister for Home Affairs [2018] AATA 2757
FYBR v Minister for Home Affairs [2019] FCAFC 185
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons

This is an application for review of a decision to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant is 28-year-old citizen of New Zealand.
THE DECISION TO CANCEL THE APPLICANT’S VISA
On 18 April 2024 the Applicant’s visa was mandatorily cancelled (‘the cancellation decision’) by a delegate of the Minister under s 501(3A) of the Act because the delegate was satisfied that the Applicant did not pass the character test on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Act and she was serving a sentence of imprisonment of over 12 months.[1]
[1] Exhibit R1, 130.
On 23 April 2024 the Applicant sought revocation of the cancellation decision and made representations in support of revocation.[2]
[2] Ibid 199.
On 24 October 2024 a delegate of the Minister decided not to revoke the cancellation decision (‘the non-revocation decision’).[3] The Applicant applied to the Tribunal for review of the non-revocation decision on 28 October 2024.[4]
[3] Ibid 16.
[4] Ibid 4.
TRIBUNAL HEARING
The hearing of the matter proceeded by video at the Melbourne Registry on 7 and 8 January 2025.
The Applicant appeared by video-link from New Zealand, having elected to being removed off-shore once her sentence of imprisonment was complete.
The Applicant was represented at the hearing by Dr Marianne van Galen-Dickie, an advocate from Queensland organisation Sisters Inside Inc.
The Respondent was represented by Ms Hannah Anderson, lawyer, from Clayton Utz. Both representatives also appeared…

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: Cook and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 21
Case: [2025] ARTA 21
Decision Date: 15 January 2025

CaseChat Overview and Summary

The Applicant, a 28-year-old New Zealand citizen, sought a review of the Minister's decision to not revoke the mandatory cancellation of her visa under section 501(3A) of the Migration Act 1958. The Minister had cancelled her visa based on a substantial criminal record and her imprisonment for over 12 months. The Applicant had requested the revocation of this decision, which was subsequently denied by a delegate of the Minister. This decision led the Applicant to apply for review by the Tribunal.

The legal issues that the court needed to resolve were centered on whether the Minister’s decision not to revoke the visa cancellation was lawful and reasonable, given the primary and other relevant considerations under the Migration Act. Specifically, the court examined whether the Minister appropriately balanced the primary consideration of protecting the Australian community with other factors, such as the Applicant's ties to Australia and the impact of removal on her minor children.

The court considered the primary consideration of protecting the Australian community from criminal or other serious conduct, as outlined in paragraph 8 of the Direction. It assessed the nature and seriousness of the Applicant's criminal conduct and the risk she posed if allowed to remain in Australia. The court also evaluated other relevant considerations, such as the Applicant's ties to Australia and the impact on her minor children. After weighing these factors, the court concluded that the Minister's decision not to revoke the visa cancellation was reasonable and lawful, as it appropriately balanced the primary consideration with the other relevant factors.

The final orders of the court were to dismiss the Applicant's application for review, affirming the Minister's decision not to revoke the mandatory cancellation of the Applicant’s visa. The court found that the Minister had appropriately exercised the discretion under the Migration Act and that the decision was supported by the evidence and the 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

This is an application for review of a decision to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant is 28-year-old citizen of New Zealand.THE DECISION TO CANCEL THE APPLICANT’S VISA On 18 April 2024 the Applicant’s visa was mandatorily cancelled (‘the cancellation decision’) by a delegate of the Minister under s 501(3A) of the Act because the delegate was satisfied that the Applicant did not pass the character test on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Act and she was serving a sentence of imprisonment of over 12 months.[1][1] Exhibit R1, 130. On 23 April 2024 the Applicant sought revocation of the cancellation decision and made representations in support of revocation.[2][2] Ibid 199. On 24 October 2024 a delegate of the Minister decided not to revoke the cancellation decision (‘the non-revocation decision’).[3] The Applicant applied to the Tribunal for review of the non-revocation decision on 28 October 2024.[4] [3] Ibid 16.[4] Ibid 4.TRIBUNAL HEARING The hearing of the matter proceeded by video at the Melbourne Registry on 7 and 8 January 2025. The Applicant appeared by video-link from New Zealand, having elected to being removed off-shore once her sentence of imprisonment was complete. The Applicant was represented at the hearing by Dr Marianne van Galen-Dickie, an advocate from Queensland organisation Sisters Inside Inc. The Respondent was represented by Ms Hannah Anderson, lawyer, from Clayton Utz. Both representatives also appeared by video. At the outset of proceedings, the Tribunal received into evidence the following materials:·Exhibit R1: G-documents comprising 208 pages;·Exhibit R2: Respondent’s Bundle of Summonsed Documents comprising 40 pages;·Exhibit R3: Respondent’s Statement of Facts, Issues and Contentions; ·Exhibit A1: Applicant’s Statement of Facts, Issues and Contentions; and·Exhibit A2: Applicant’s Bundle of Material comprising of a five-page statement from the Applicant dated 19 December 2024, various certificates, and an undated letter from a financial counsellor regarding information sessions attended by the Applicant. The Applicant gave evidence at the hearing and was cross-examined by the Respondent. The Applicant did not seek to call oral evidence from any other witnesses but sought to rely on written statements already provided in support of the Applicant from the Applicant’s mother, stepfather, and half-brother.[5] [5] Exhibit A2, 1.LEGISLATIVE FRAMEWORK Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph 6(a) (substantial criminal record), on the basis of paragraph 7(a), (b) or (c); or paragraph (6)(e) (sexually based offences involving a child); and(b)the person 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.

Ratio Decidendi

Legal Principle Established

Paragraph 8 of the Direction provides that in making a decision under s 501(1), 501(2) or 501CA(4), the following are primary considerations:(1)protection of the Australian community from criminal or other serious conduct;(2)whether the conduct engaged in constituted family violence;(3)the strength, nature and duration of ties to Australia;(4)the best interests of minor children in Australia; (5)expectations of the Australian community.Other considerations Paragraph 9(1) of the Direction provides that in making a decision under s 501(1), 501(2) or 501CA(4), the following other considerations must also be taken into account, where relevant, in accordance with those provisions. The other considerations include (but are not limited to):a)legal consequences of the decision;b)extent of impediments if removed;c)impact on Australian business interests.ANALYSIS Primary consideration 1 – Protection of the Australian community Paragraph 8.1 of the Direction provides that:(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. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, 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 Tribunal has considered paragraph 8.1(1) of the Direction and has regard to the principle that the safety of the Australian community is highest priority of the Australian Government. The Tribunal has also had 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. The Tribunal has also given consideration to the factors listed at paragraph 8.1(2) of the Direction.The nature and seriousness of the conduct Paragraph 8.1.1(1) contains the factors that decision-makers must have regard to when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Paragraph 8.1.1(1)(a) provides that: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.