DGYZ and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 2272

DGYZ and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2272 (27 October 2025)

Applicant:DGYZ

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/4576

Tribunal:Senior Member D Thomae

Place:Brisbane

Date:27 October 2025

Decision:Pursuant to s 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision made by a delegate of the Respondent on 4 August 2025 to not revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 visa.

................[Sgnd]............................................

Statement made on 27 October 2025 at 2:18pm

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class BB subclass 155 visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– circumstances where the Applicant is alleged to be ‘stateless’ - decision under review affirmed

Legislation

Administrative Review Tribunal Act 2024 (CTH)
Crimes Act 1914 (CTH)
Migration Act 1958 (CTH)

Cases

BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 14

Brown v Minister for Immigration and Citizenship [2010] FCAFC 33

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

FYBR v Minister for Home Affairs (2019) 272 FCR 454

Minister for Home Affairs v Buadromo [2018] 267 FCR 320

Minister for Home Affairs v HSKJ [2018] FCAFC 217

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs and Another (2023) 415 ALR 254

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 

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

Department of Foreign Affairs and Trade - Country Information Report – Myanmar, 7 April 2025

Statement of Reasons

INTRODUCTION

  1. Mr DGYZ (the Applicant) who is of Karen ethnicity, first arrived in Australia in November 2013 at the age of 16 years on a refugee visa (subclass 200), and then finally again in January 2020 as a holder of a Class BB Subclass 155 visa (visa).

  2. On 1 March 2024, the Applicant was convicted of ‘the persistent sexual abuse of a child/young person under special care’ and sentenced to imprisonment for 2 years and 3 months (the Index Offence). As a result of his sentence for this offending, his visa was mandatorily cancelled on 6 September 2024.

  3. Following representations made by the Applicant to revoke the mandatory cancellation of his visa, on 4 August 2025 a delegate of the Minister (the Minister or the Respondent) refused to revoke the mandatory cancellation of his visa (the reviewable decision).

  4. By an application for review filed on 11 August 2025 in the Tribunal, the Applicant seeks a review of the reviewable decision not…

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Details
AGLC
DGYZ and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2272
Case
[2025] ARTA 2272
Decision Date

CaseChat Overview and Summary

In the matter of DGYZ v Minister for Immigration and Citizenship, the applicant, DGYZ, contested the non-revocation of the mandatory cancellation of his Class BB subclass 155 visa due to his failure to pass the character test. The central legal issues before the court were whether there were sufficient grounds to revoke the mandatory cancellation decision and whether the Ministerial Direction No. 110 was appropriately applied. The court had to weigh the nature and seriousness of DGYZ’s past conduct against other factors such as his ties to Australia and the impact on his minor children.

DGYZ argued that various mitigating factors, such as his early plea of guilt and genuine remorse, should reduce the severity of his past conduct. However, the court found that the applicant’s understanding of the victim's lack of consent and his disregard for her wishes significantly contributed to the seriousness of his past conduct. The court noted the sentencing judge's doubt about the applicant's genuine remorse, which aligned with the evidence presented during the cross-examination. Additionally, the court considered the impact on DGYZ's immediate and extended family members in Australia, as well as the strength of his ties to the country. The presence and involvement of DGYZ in the lives of his minor children were also critical in the court's assessment.

The court ultimately decided that the non-revocation of the mandatory cancellation decision was not in the best interests of the minor children, particularly due to the strong emotional bonds they shared with DGYZ. The children’s ability to maintain these bonds in the event of DGYZ's removal was deemed insufficient to outweigh the negative impact his past conduct could have on them. Therefore, the court affirmed the decision under review, upholding the mandatory cancellation of DGYZ's visa.

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

There was no evidence of any conduct in respect of the other considerations in paragraph 8.1.1(1)(g), (h) and (i) of the Direction. Conclusion on Nature and Seriousness of Conduct to Date The Applicant acknowledges, consistent with the Respondent’s SFIC and the sentencing remarks of Berman AJ, that the Applicant’s offending in the Index Offence was very serious and involved repeated sexual conduct with a young person under special care.[15] [15] Applicant’s Reply at [3]. The Applicant contends that the seriousness of the Index Offence is moderated by:(a)The sentence imposed was well below the statutory maximum of 25 years, reflecting the Court’s assessment that while the conduct was serious, it did not fall within the most serious category of offending.[16](b)The lack of a victim impact assessment before the sentencing judge was such that findings of catastrophic or ongoing harm could not be made, nor should the Tribunal speculate beyond the acknowledgement of the seriousness of the harm caused as determined in sentencing.[17](c)The Applicant’s early plea of guilt that meant the victim did not have to give evidence and was an acknowledgement of the Applicant’s responsibility for the conduct.[18](d)The Applicant’s genuine remorse as found by the sentencing judge as satisfaction that the Applicant’s rehabilitation had commenced before sentencing, rather than a claim only advanced later.[19](e)The context of the Applicant’s upbringing in a refugee camp, lacking stable parental care and positive role models, that with the Applicant’s support by his family and community, was an aberration in the context of his life.[20](f)The Index Offence was an isolated event against the DUI as a minor offence.[21][16] Applicant’s SFIC at [27]-[28].[17] Applicant’s SFIC at [29].[18] Applicant’s SFIC at [30].[19] Applicant’s SFIC at [31].[20] Applicant’s SFIC at [32].[21] Applicant’s SFIC at [33]. Mr Keevers in closing emphasised the ‘profound and extraordinary’ concessions made by the Applicant during cross-examination that he understood consent at all salient times and simply didn’t care about the victim. Mr Keevers submitted that the Tribunal should have no confidence in the Applicant’s evidence about the impact on the victim as he was only interested in how it impacted on him. On the evidence before me I find the Index Offence is ‘very serious’ pursuant to paragraph 8.1.1(1)(a) of the Direction because:(a)The Applicant understood that the victim did not want to do the sexual acts on each occasion as particularised in the ‘agreed statement of facts’.(b)The Applicant understood that he did not have the victim’s consent on any occasion as particularised in the ‘agreed statement of facts’.(c)The Applicant knew that on each occasion of the sexual acts as particularised in the ‘agreed statement of facts’, caused her pain, discomfort, humiliation and distress, but he persisted to do them, overcoming her physical resistance without regard to her, in gratification of his own sexual desires.(d)The sexual acts as particularised in the ‘agreed statement of facts’ occurred over a period of months where the Applicant was repeatedly told by the victim between sexual acts that she did not want to engage in further sexual acts, but he did them anyway, without regard to her wishes or consent.(e)The Applicant’s concessions during cross-examination as to his understanding that he did not have the consent of the victim on each and every occasion of his offending and the impact on the victim over a period of months, are such that I give significant weight to them. (f)I accept the moderation of the Applicant’s offending as contended, except as to the Applicant’s remorse, and I agree with the Respondent’s contention based on the Applicant’s evidence during cross-examination, that the Applicant’s insight into the impact of his offending on the victim and her family was inconsistent with his primary concern over his own circumstances arising from his offending conduct.(g)This finding is consistent with that of the sentencing judge who expressed doubt about the Applicant’s genuine remorse.

Ratio Decidendi

Legal Principle Established

Taking into account the impact of any non-revocation decision on the Applicant’s immediate and extended family members in Australia, the strength, nature and duration of ties to Australia, I consider this Primary Consideration 3 weighs heavily in favour of the revocation of the cancellation of the Applicant’s visa. Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Paragraph 8.4 of the Direction requires me to determine whether a non-revocation decision is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision. Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration, which relevantly include: · the nature and duration of the relationship between the child and the Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);· the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;· the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;· the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways; and· whether there are other persons who already fulfil a parental role in relation to the child.Nephew and two nieces – Children of older half-brother and sister-in-law The Applicant has a nephew and two nieces (the Children) who are minors (born 2018, 2020 and 2023 respectively). The Children live with their parents in a household that the Applicant has also lived, and the uncontradicted evidence is that the Applicant, whilst not in a parental role, was an integral part of their lives, assisting with their daily lives including, preparing meals, school drop-offs and caregiving responsibilities.[40] [40] Exhibit A5, pp 8-9. The Children have a strong emotional bond with the Applicant, borne out by the evidence of their parents as well as the photos of them with the Applicant and the drawings and notes provided by them.[41] [41] Exhibit A6, Exhibit A7. The Children are 7, 5 and 2, and if the Applicant was returned to the community, I accept that the Applicant would have a role in their lives for an extended period until they reached adulthood.Niece and nephew – Children of older sister The Applicant has an additional niece and nephew (born 2011 and 2014 respectively), permanent residents of Australia, that he also has an emotional bond with, although he has not lived with them or is a primary carer.