DATT and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1604

DATT and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1604 (2 September 2025)
Applicant/s:  SIDARTH DATT
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4125

Tribunal:Senior Member S Thode
Place:Sydney
Date:2 September 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]........................................
Senior Member S Thode
Catchwords
MIGRATION – Cancellation of Class BN Subclass 136 Skilled Independent Visa under s501(2) of the Migration Act 1958 – applicant does not pass the character test – applicant has been a member of an outlaw motorcycle gang– applicant arrived in Australia as young child - whether to exercise the discretion to cancel the visa - best interests of minor children – strength, nature and duration of ties to Australia – decision under review set aside
Legislation
Migration Act 1958 (Cth)
Weapons Prohibition Act 1998 (NSW)
Cases
FHHM v Minister for Immigration [2022] FCAFC 19
Lesianawai Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Suleiman v Minister for Immigration [2018] FCA 594
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a discretionary cancellation of a visa under section 501(2).
Statement of Reasons
INTRODUCTION

The applicant seeks review of a decision made on 11 June 2025 to cancel his Class BN Subclass 136 Skilled Independent visa (visa) on the basis that the applicant does not pass the character test pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act).
The visa was cancelled on the reasonable suspicion of the Minister that the applicant became a member of the Comancheros Outlaw Motorcycle Gang (OMCG) in or about January 2022. The applicant, who was represented at the hearing, admits that he associated with and was a member of the OMCG.
The application was heard on 21 August 2025. At the hearing Mr Perez, solicitor appeared for the applicant by video link and Ms C Saunders, Australian Government Solicitor Lawyer for and on behalf of the Australian Government Solicitor appeared for the respondent. The Tribunal heard evidence from the applicant’s employer Mr C S and the applicant’s sister Ms ASD.
For the following reasons the Tribunal has decided to set aside the decision under review and in substitution decide that the decision cancelling the applicant’s visa should be revoked.
BACKGROUND
Applicant’s background
The applicant is a citizen of Fiji and is currently 25 years old. He arrived in Australia in 2008 when he was eight years old with his mother and father. The applicant’s father left the family, and the applicant has no contact with him and does not know of his whereabouts. The applicant and his mother and sister, who was born in 2010, reside in Mount Druitt, although the applicant is currently…

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: DATT and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1604
Case: [2025] ARTA 1604
Decision Date: 2 September 2025

CaseChat Overview and Summary

The parties involved in the case are the applicant, a citizen of Fiji, and the Minister for Immigration and Citizenship. The dispute concerns the cancellation of the applicant's Class BN Subclass 136 Skilled Independent Visa under section 501(2) of the Migration Act 1958. The applicant, who arrived in Australia at the age of eight, has been a member of an outlaw motorcycle gang, which led to the Minister's suspicion that he does not pass the character test. The case was heard by the Administrative Appeals Tribunal (AAT). The primary legal issue the court had to decide was whether the Tribunal should exercise its discretion to cancel the visa, considering the relevant factors outlined in the Direction No. 110. The Tribunal had to balance the considerations set out in the Direction, including the protection of the Australian community against criminal conduct, the applicant's ties to Australia, the interests of minor children, and the legal consequences of the decision.

The Tribunal concluded that the primary considerations that weighed in favour of the applicant outweighed those that weighed against him. The Tribunal found that the applicant's extensive ties to Australia, including his long-term residence and the presence of his minor children, were significant factors against cancelling the visa. The Tribunal also noted that the legal consequences of the decision and the impediments the applicant might face if removed from Australia were moderately in favour of the applicant. Given these findings, the Tribunal decided to set aside the decision to cancel the visa and instead revoked the cancellation, allowing the applicant to retain his visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons the Tribunal has decided to set aside the decision under review and in substitution decide that the decision cancelling the applicant’s visa should be revoked.BACKGROUNDApplicant’s background The applicant is a citizen of Fiji and is currently 25 years old. He arrived in Australia in 2008 when he was eight years old with his mother and father. The applicant’s father left the family, and the applicant has no contact with him and does not know of his whereabouts. The applicant and his mother and sister, who was born in 2010, reside in Mount Druitt, although the applicant is currently in immigration detention. The applicant’s offending history The applicant has an extensive juvenile record, having first been convicted of criminal offending as a 13-year-old, however the Minister accepts that the Tribunal is unable to take these offences into account in light of Lesianawai.[1] Whilst the Tribunal notes that the applicant has numerous offences proven against him, the Tribunal has not taken his convictions in the juvenile jurisdiction into account, although his record has been tendered and is included in the G-Documents.[2][1] Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6.[2] Exhibit R1 JTB p.37. The first relevant offence for the purpose of this review is the applicant’s conviction dated 8 August 2018 for Drive with Middle Range PCA first offence for which he was fined $450, and his licence was suspended for a period of six months. On 27 November 2018 the applicant was convicted in Penrith Local Court of an offence Destroyed or damaged property <=2000 T2 for which he was fined $500. On 17 December 2018, only one month later, the applicant was convicted of the offence of Assault occasioning Actual Bodily Harm (AOBH), with a maximum penalty of 5 years, the applicant received a conviction and sentence of 8 months with a non-parole period of four months. The details of the offence will be set out further below in these reasons for decision. The five subsequent offences for which the applicant was convicted in 2020 are Drive while licence cancelled - 1st off; Destroy or damage property >$ 5000 & <=$15000-T1; Drive while licence cancelled - 2nd+off; Drive while licence cancelled - 2nd+off; Drive with middle range PCA - 2nd+off. The applicant did not offend again until January 2023 when the applicant was convicted and fined in respect of possession of a prohibited drug, being 2 grams of cannabis, for which the applicant received a fine of $450. The applicant was served with a Weapons Prohibition Order under s 33(1) of the Weapons Prohibition Act 1998 (NSW) dated 12 July 2022 as he was found not to be a fit and proper person to have possession of or access to a prohibited weapon on account of his record. There is no suggestion by the Minister that the applicant owned a weapon or applied for a gun license or had a gun license cancelled.Visa cancellation Section 501(2) of the Act enables the Minister to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test.

Evidence

Evidence Before The Court

The Tribunal has jurisdiction to review a decision to cancel visa under s 501(2), where the application for review is lodged within nine days after the decision is notified: s 500(6B). In this case, although the visa was cancelled on 29 January 2025 the decision was not notified to the applicant until 11 June 2025. The application for review of that decision was made on 20 June 2025 within nine days after the decision was notified within the statutory time limit provided by s 500(6B) of the Act. The Tribunal therefore has jurisdiction to hear and determine the application. Pursuant to s 500(6L) of the Act, the Tribunal is required to make a decision within 84 days of the day after the applicant was notified of the decision or it will be taken to be affirmed. The ‘84th day’ in this application falls on 3 September 2025. EVIDENCE AND SUBMISSIONS In deciding in relation to the application, the Tribunal has considered:(a)The applicant’s bundle of documents – Exhibit A1(b)The applicant’s submissions filed on 20 August 2025(c)Certificate of Prison Fellowship of Australia dated 15 August 2025(d)Reference letter Mr CS of xxx Pty Ltd(e)Reference letter Dr Joseph Awad dated 22 June 2025(f)Reference letter Matthew Moynahan undated(g)Statement of the applicant, undated, filed 16 July 2025(h)Reference letter Ramesh Nath and Roshini Nath, undated, filed 15 July 2025(i)Statement Shelley Roslyn Lata, applicant’s mother, undated, filed 15 July 2025(j)Statement Shelley Roslyn Lata, applicant’s mother, undated filed 16 July 2025(k)Statement of ASD, the applicant’s sister, 29 January 2024(l)The respondent’s bundle of documents – Exhibit R1(m)The “G documents” - Exhibit R2(n)The oral evidence given by the applicant and his witnesses; and(o)The closing oral submissions made on behalf of the parties. The applicant’s witnesses were:·His employer, Mr CS of XXX Pty Ltd·His sister, Ms ASD, 15 years of age. Relevant parts of the oral evidence and submissions are considered below. LEGISLATIVE FRAMEWORK Section 501 of the Act deals with decisions to refuse or cancel a visa on character grounds. Relevantly to this case s501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. Section 501(6)(b) relevantly states:(b) the Minister reasonably suspects:(i) that the person has been or is a member of a group or organisation, orhas had or has an association with a group, organisation or person; and(ii) that the group, organisation or person has been or is involved in criminalconduct… If the Tribunal is not satisfied that a person passes the character test, it must then consider whether or not the discretion to cancel should be exercised. In exercising the discretion, the Tribunal must have regard to the considerations set out in Direction No. 110, visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) which commenced on 21 June 2024.

Decision

Reasons for decision

There is no evidence of impact on Australian business interests. This factor is neutral.CONCLUSION The Tribunal has considered the applicant’s circumstances in relation to the various considerations set out in the Direction. It must now carry out the evaluative exercise of weighing up the factors to determine whether to exercise the discretion under s 501(1) of the Act to cancel the applicant’s visa. The Tribunal made the following findings concerning the relevant primary considerations in the Direction, other considerations being neutral:(a)The protection of the Australian community against criminal and other serious conduct weighs in favour of cancelling the visa.(b)The strength, nature and duration of ties to Australia weighs heavily against cancelling the visa.(c)The interest of minor children weighs moderately against cancelling the visa. (d)The expectations of the Australian community weighs in favour of cancelling the visa, although not overwhelmingly so. The Tribunal made the following finding about the only relevant other consideration in the Direction:(e)The legal consequences of the decision weighs at least to some extent in favour of revoking the cancellation of the visa.(f)In respect of the impediments if removed, the Tribunal this consideration weighs moderately against cancelling the applicant’s visa The Tribunal concludes that the primary consideration of the protection of the Australian community, which weighs in favour of cancelling the visa, and the expectations of the Australian community, which weighs in favour of cancelling the visa although not overwhelmingly so, do not outweigh the considerations that weigh in favour of the applicant; namely the strength, nature and duration of the applicant’s ties to Australia, the best interests of minor children, the legal consequences of the decision and the extent of the impediments the applicant may face if removed from Australia. The Tribunal is satisfied that the conclusion in this regard accords with the weight of the evidence and the principles set out in 5.2 of the Direction. In relation to this, 5.2(2) expressly states that the safety of the Australian Community is the highest priority of the Australian Government, and the principles otherwise emphasise the interests of the community rather than those of the individual. In this case, the two primary factors do not overwhelmingly weigh against the applicant, and the other primary considerations weigh moderately in favour of the applicant. For these reasons, the primary considerations that weigh in favour of the applicant, the ties to the Australian community, the best interests of minor children, the legal consequences if the applicant were to be removed, and the impediments he may face if removed, outweigh the primary considerations that weigh against the applicant. For the reasons set out above the Tribunal sets aside the reviewable decision of a delegate of the respondent to cancel the applicant’s visa and in substitution decides that the cancellation of the applicant’s visa is revoked.

Ratio Decidendi

Legal Principle Established

The applicant concedes that he does not pass the character test. The issue to be determined is therefore whether the discretion to cancel the visa should be exercised, taking into account relevant considerations in the Direction. CONSIDERATIONCharacter test As is set out above, by section 501(6)(b) the applicant will not pass the character test if the Tribunal reasonably suspects:(a) that the applicant has been or is a member of a group or organisation or has had or has an association with a group, organisation or person; and (b) that the group, organisation or person has been or is involved in criminal conduct. Annexure A, section 3(3) of the Direction relevantly provides … [a] member is a person who belongs to a group or organisation. The evidence required to establish reasonable suspicion of membership of a group or organisation will depend on the circumstances of the case. Decision-makers should note that failure of this limb of the character test does not require an assessment that the person was sympathetic with, supportive of, or involved in the criminal conduct of the group or organisation. It is sufficient under this element of the test that the decision-maker has a reasonable suspicion that: a) the person has been, or is a member of a group or organisation; and b) the group or organisation has been, or is, involved in criminal conduct. As to the satisfaction of the first limb of s501(6)(b) of the Act, the applicant has admitted that he was a fully patched member of the Comancheros OMCG and does not deny his association with that organisation. This was admitted by the applicant under oath and the applicant’s legal representative further acknowledged this to be the case in written submissions: “Mr Datt acknowledges that, for a short period of time, he became involved with the Comanchero Mudgee group. He accepts responsibility for his poor decision and understands the seriousness of such involvement”. The first limb of s 501(6)(b) is established, and the Tribunal finds that the applicant has been a member of a group or organisation. In respect of the second limb, …that the group organisation, or person has been or is involved in criminal conduct, the Minister has provided evidence, in the form of reports of the Australian Government Australian Institute of Criminology and the Australian Criminal Intelligence Commission that establish to the reasonable suspicion of the Tribunal, that the Comancheros OMCG has been or is involved in criminal conduct. Further it is not contested by the applicant that the material before the Tribunal demonstrates that the group is or has been involved in criminal conduct.[6][6] Written submissions 25 August 2025, at p.2 [2]. Whilst the evidence of criminal conduct may be described as generic, the Tribunal acknowledges that the Comancheros are a recognised outlawed criminal motorcycle gang and on the material before it, and in light of the concession by the applicant’s legal representative that this issue is not in contention, the Tribunal is satisfied that the Comancheros OMCG has been and is involved in criminal conduct in Australia and finds accordingly.