Dau and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1562

Dau and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1562 (27 August 2025)
Applicant/s:  Bol Joseph Dau
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4008

Tribunal:Deputy President P Britten-Jones
Place:Sydney
Date:27 August 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation decision of 30 October 2023 is revoked.

...................[SGD].....................................................
Deputy President P Britten-Jones
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 of the mandatory cancellation of Applicant’s Global Special Humanitarian (Subclass 202) Visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – low risk of reoffending and very strong ties to the Australian community - decision under review is set aside and the visa cancellation is revoked
Legislation
Migration Act 1958 (Cth)
Cases
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (dated 7 June 2024)
Statement of Reasons

This is an application for review of a decision to not revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (subclass 202) visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA
On 30 October 2023 the Applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
The Applicant made submissions seeking to revoke the cancellation decision in November 2023 and on 22 April 2025.
On 4 June 2025, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). The Applicant applied to the Tribunal for review of the non-revocation decision on 10 June 2025.The Tribunal heard the matter on 15 August 2025.
LEGISLATIVE FRAMEWORK
Under s 501(3A), 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); 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.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides…

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.

Continue reading Dau and Minister for Immigration and Citizenship (Migration)

Details

AGLC: Dau and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1562
Case: [2025] ARTA 1562
Decision Date: 27 August 2025

CaseChat Overview and Summary

The Applicant, a Sudanese-born non-citizen, faced the cancellation of his Global Special Humanitarian Visa under Section 501CA(4) of the Migration Act 1958 due to failing the character test. The decision was subject to review by the Tribunal. The central issue for the Tribunal was whether there were sufficient grounds under Section 501CA(4)(b)(ii) to revoke the mandatory cancellation, considering the Applicant's representations. The Tribunal had to evaluate the factors presented, including the Applicant's criminal history, risk of reoffending, and ties to the Australian community.

The Tribunal meticulously assessed the Applicant's criminal conduct, which included multiple offences between 2018 and 2024, with his imprisonment periods indicating escalating behaviour linked to substance abuse. Despite these serious offences, the Applicant demonstrated a low risk of reoffending, supported by his efforts to stabilise his life post-release from prison and his strong ties to the Australian community, including his family and children. The Tribunal recognised the importance of balancing the protection of the Australian community against the Applicant's personal circumstances, ultimately deciding that the factors presented warranted a revocation of the visa cancellation.

In light of the assessment, the Tribunal concluded that the mandatory cancellation decision should be revoked. The Applicant's low risk of reoffending and significant ties to the Australian community provided compelling reasons to overturn the cancellation. The decision under review was set aside, and the visa cancellation was revoked, allowing the Applicant to retain his visa status.

Orders

Orders of the court

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Background

Background to the litigation

Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which I am required to ‘read, identify, understand and evaluate’.[2] As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane, ‘deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an Applicant’s past offending’.[3] [2] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [22], [36].[3] [2021] HCA 41, [14].BACKGROUND The Applicant was born on 10 April 2000 in Khartoum, Sudan. He fled Sudan with his family and went to Egypt before he came to Australia on 9 August 2006 when he was six years old. He has six siblings and two children with his de-facto partner. From 2018 he has engaged in criminal conduct for which he was imprisoned. Whilst in prison his visa was cancelled on 30 October 2023. He was released from prison into immigration detention on 26 February 2024. He was granted a bridging visa on 14 August 2024 and has been on various bridging visas in the community since that time. He applied for a protection visa on 12 August 2025.Direction 110 The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.[4] [4] Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). For the purposes of deciding whether to refuse a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision. The principles that are 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 non-citizen poses a measureable 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 measureable risk of causing physical harm to the Australian community.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:(a)would be the reason, or a part of the reason, for making the original decision; and(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.(3) As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way that the Minister considers appropriate in the circumstances:(i)a written notice that sets out the original decision; and(ii)particulars of the relevant information; and(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.…(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked.(Emphasis in original) Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.ISSUES BEFORE THE TRIBUNAL The Applicant concedes appropriately that he does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which I am required to ‘read, identify, understand and evaluate’.[2] As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane, ‘deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an Applicant’s past offending’.[3] [2] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [22], [36].[3] [2021] HCA 41, [14].BACKGROUND

Ratio Decidendi

Legal Principle Established

The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[7]CONSIDERATION[7] Ibid 7(2).Protection of the Australian community – 8.1 of Direction 110 When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. 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.[8] As required by paragraph 8.1(2) of the Direction, I give consideration below to:(a)the nature and seriousness of the non-citizen’s conduct to date; and(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[8] Ibid 8.1(1).The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110 When considering the nature and seriousness of the Applicant’s conduct, I take into account his criminal activity and other serious conduct. The Applicant has been convicted of seven criminal offences between 2018 and 2024. On 26 April 2019 the Applicant was sentenced in the Penrith Local Court to 14 months imprisonment for an offence of affray which occurred on 9 June 2018 and an offence of failing to appear in Court on 17 May 2018. He had one prior offence for possessing or using a prohibited weapon for which he had been convicted on 9 November 2018. The sentencing judge assessed the objective seriousness of the offence of affray to be in the mid-range in relation to like matters that come before the court. He noted that the Applicant reported he was under the influence of alcohol at the time of the offending and that alcohol had been problematic for a period of 12 months leading up to the offending as a consequence of being stabbed and losing sight in his eye in January 2018. He noted that the Applicant ceased taking medication for his schizophrenia at the time of the offence and that he had expressed an understanding in relation to his involvement in the offence and recognised the impact of his behaviour. He referred to a sentencing assessment report which assessed him as a medium risk of reoffending and a need for a referral for alcohol and drug assessment. The Applicant was released from his prison sentence in around April 2019. He tried to get his life back together by finding work and staying off alcohol for a couple of years. However, he then lost his mother in late 2022 and did not cope well. He started drinking again and taking party drugs on an increasing basis until it became daily. His relationship with his partner, which had lasted about six years, soured. In July 2023 he was charged with supplying and possessing a prohibited drug. He explained that he was taking ice at the time and sold a bit to get by, but most of it was for personal use. On 29 September 2023 he was sentenced to a term of four months imprisonment and a community corrections order to be of good behaviour for 12 months. The sentencing judge described the Applicant as “a street dealer for the purpose of possession for supply based on your admissions to fund your own drug habit.” Shortly after being arrested and charged for these offences in July 2023 he attended his ex-partner’s house to see his children. An argument developed with his ex-partner and he pushed her away. He said that he should never have put his hands on her and that he was under the influence of drugs at the time. On 27 February 2024 he was convicted of common assault and stalk/intimidate intend fear physical etc harm (domestic) and sentenced to 4 months imprisonment and a community correction order for 12 months. The sentencing judge noted that the Applicant assaulted and intimidated his then partner and that “there was a young child present, requiring the mother of the child to put down the child, and a forceful push to the left arm and a slap on the forehead.” He considered that a jail term was appropriate because the nature of the offending was serious being an assault in a domestic context together with intimidation resulting in continuing fear of harm.