Fitzpatrick and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 708

Fitzpatrick and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 708 (30 May 2025)
Applicant/s:  Timothy Fitzpatrick
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/1945

Tribunal:General Member S Evans
Place:Sydney
Date of Decision: 30 May 2025
Date of Written Reasons: 11 June 2025
Decision:The Tribunal sets aside the reviewable decision of a delegate of the Respondent to cancel the Applicant’s Special Category (Class TY) (Subclass 444) visa and in substitution decides that the cancellation of the Applicant’s visa is revoked.

..........[SGD]........................................................
General Member S Evans
Catchwords
MIGRATION – Cancellation of Class TY Subclass 444 Special Category (Temporary) visa under s 501(2) of the Migration Act 1958 – Applicant does not pass the character test – Applicant has been a member of outlaw motorcycle gangs – whether to exercise the discretion to cancel the visa – offending where no conviction recorded - best interests of minor children – strength, nature and duration of ties to Australia – decision under review set aside.
Legislation
Migration Act 1958 (Cth)
Cases
Khalil v Minister for Home Affairs [2019] FCAFC 151
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons
INTRODUCTION

Timothy Fitzpatrick (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) to exercise the discretion provided by s 501(6)(b) of the Migration Act 1958 (Cth) (the Act) to cancel his Special Category (Class TY) (Subclass 444) visa (visa) under s 501(2) of the Act.
On 4 October 2024 the Applicant was sent Notice of Intention to Consider Cancellation (NOICC) of his visa. The NOICC indicated that the Respondent held information that suggested the Applicant may not pass the character test by operation of 501(6)(b) of the Act. The Applicant responded to the notice with submissions and evidence.[1]
[1] G-Documents (‘G’), G23.
On 21 January 2025 a delegate of the Respondent exercised the discretion under s 501(2) of the Act to cancel the Applicant’s visa (the reviewable decision) and he was notified of the decision on 7 March 2025.[2] On 14 March 2025 the Applicant applied to the Tribunal for review of the decision.
[2] G2/15.
The hearing was rescheduled to accommodate a delay in issuing summons to the NSW Police in respect to the Applicant. The decision to set aside the reviewable decision was made and provided to the parties on 30 May 2025 with a note that written reasons would be provided within a reasonable time. These are the written reasons.[3]
[3] Khalil v Minister for Home Affairs [2019] FCAFC 151 at [48].
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501(2) empowers the Minister to cancel a…

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

Case: [2025] ARTA 708
Decision Date: 30 May 2025

CaseChat Overview and Summary

In the case between Fitzpatrick and the Minister for Immigration and Multicultural Affairs, the applicant, who was on a Class TY Subclass 444 Special Category (Temporary) visa, faced potential cancellation due to failing the character test, primarily due to his past membership in outlaw motorcycle gangs. The central issue before the court was whether the discretion under section 501(2) of the Migration Act 1958 should be exercised to cancel the applicant’s visa. The court had to weigh factors such as the protection of the Australian community, the potential impact on the applicant's family, and the strength of his ties to Australia.

The court considered the primary consideration of protecting the Australian community from criminal or serious conduct. Although the applicant had a limited criminal history with offences that were not recorded as convictions, his past membership and leadership roles in outlaw motorcycle gangs were significant. The court also took into account the risk of future offending and the potential harm that could result from his continued association with these gangs. Despite the lack of recent gang-related charges, the court concluded that the protection of the Australian community favoured cancelling the visa due to the applicant’s long-held membership and association with outlaw motorcycle gangs.

Regarding the applicant’s family ties, the court examined the impact of visa cancellation on his immediate family members, who are Australian citizens or permanent residents. The applicant’s wife and children provided statements highlighting the detrimental effects that his removal would have on their lives, including potential mental health deterioration and the loss of a primary caregiver for his elderly father-in-law. The court also considered the duration and nature of the applicant’s ties to Australia, noting his long residence since 1979 and his role as a primary carer for his wife and father-in-law.

The court found that while the applicant had significant ties to Australia, particularly his family, the primary consideration of protecting the Australian community weighed heavily in favour of cancelling the visa. The court ultimately decided to set aside the decision under review and exercise the discretion to cancel the applicant’s visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Applicant’s daughter says his removal would be catastrophic for her, her family and particularly her eldest child, who regularly turns to the Applicant for guidance and support. She believes the Applicant’s removal would have profound negative effects which she fears may trigger her PTSD and depression. Evidence of the Applicant’s son The Applicant’s adult son has provided a statement dated 22 April 2025 in which he confirms his father provides care to his mother. He writes that the Applicant sacrificed his career and social life to support his mother who struggles with physical conditions and mental illness. His two children both consistently express how deeply they miss the Applicant. He considers his father a role model whose removal from Australia would cause profound and lasting harm to he and his family. CONSIDERATIONPrimary Consideration 1: Protection of the Australian Community I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.1 of the Direction states: 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. Paragraph 8.1.1 of Direction 110 provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2 requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct.’Nature and seriousness of the Applicant’s conduct to date The Applicant describes his limited criminal history as ‘relatively minor’. An Australian Criminal Intelligence Commission Check Results Report records the Applicant was found guilty of assault on 25 May 1987, assault occasioning actual bodily harm on 21 April 1997 and stalk/intimidate w/i to cause fear physical/mental harm on 6 June 2005. Sentencing for the 1987 offence was deferred on the Applicant entering into recognizance to be of good behaviour for two years, he was fined and received 24 months supervision for the 1997 offence, and issued a section 10 bond for the 2005 offence. As the offences were not recorded as convictions, I am precluded from having regard to them and I have placed no weight on the offending.[8] [8] See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 [73]-[74]

Decision

Reasons for decision

When assessing the risk posed by the Applicant, I take into consideration there are no gang related charges or findings against the Applicant. Nonetheless, future association with OMCGs by the Applicant would be expected to contribute to the harm caused by these gangs. In my view, the Applicant’s future contribution to the gangs, and it follows the harm they cause, would be less than when he was a member and office bearer in OMCGs. Conclusion as to the protection of the Australian community The Applicant’s long-held membership and continued association with OMCGs means that the protection of the Australian community weighs in favour of cancelling the visa. Primary consideration 2: Family violence There is no evidence that this consideration is relevant and it weighs neutrally. Primary consideration 3: The strength, nature and duration of ties to Australia I am required to consider the impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having regard to: (a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community The Applicant has close family ties in Australia notably his wife, daughter, and son. Each has provided a statement outlining their support for the Applicant and the detrimental impact his removal would have on their lives. The Applicant has resided in Australia for most of his adult life having arrived in 1979 age 21. He and his wife have been together since 1985. As outlined in her statement, she suffers a range of physical and mental health conditions. Should the Applicant be deported, her functional capacity and overall mental state is likely to deteriorate significantly, which the Applicant fears will place her at risk of self-harm. In their statements, both the Applicant’s adult children speak of their close relationship with their father throughout their lives. The Applicant’s daughter writes of the extensive support he has provided as she addressed her mental health and the challenge of caring for her sons. The Applicant is the primary carer for his father-in-law - who is in his nineties – and would be emotionally and practically impacted should the Applicant’s visa be cancelled. The Applicant has referred to other family members in Australia, including a brother-in-law, sister-in-law as well as uncles, aunts, nephews, nieces and cousins. However, these individuals have not provided statements in support of the Applicant and there is very limited information about the strength of the Applicant’s relationship with them.

Ratio Decidendi

Legal Principle Established

His two children both consistently express how deeply they miss the Applicant. He considers his father a role model whose removal from Australia would cause profound and lasting harm to he and his family. CONSIDERATIONPrimary Consideration 1: Protection of the Australian Community I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.1 of the Direction states: 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. Paragraph 8.1.1 of Direction 110 provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2 requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct.’Nature and seriousness of the Applicant’s conduct to date The Applicant describes his limited criminal history as ‘relatively minor’. An Australian Criminal Intelligence Commission Check Results Report records the Applicant was found guilty of assault on 25 May 1987, assault occasioning actual bodily harm on 21 April 1997 and stalk/intimidate w/i to cause fear physical/mental harm on 6 June 2005. Sentencing for the 1987 offence was deferred on the Applicant entering into recognizance to be of good behaviour for two years, he was fined and received 24 months supervision for the 1997 offence, and issued a section 10 bond for the 2005 offence. As the offences were not recorded as convictions, I am precluded from having regard to them and I have placed no weight on the offending.[8] [8] See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 [73]-[74] In a written statement, the Applicant acknowledges that he was previously a member of both the Bandidos and Hells Angels motorcycle clubs.[9] He claims to have ‘long since’ ceased any involvement with these organisations, aside from occasionally attending funerals of some former clubmates that he knew.[10] [9] Applicant’s statement of 22 April 2025.[10] Ibid. The Respondent submits that the Bandidos and Hells Angels OMCG are notorious for their involvement in, amongst other things, organised crime, proliferation of illicit firearms, drug trafficking and violent crime. The Respondent has provided media releases from Australian law enforcement bodies including Australian Border Force, Australian Federal Police, Queensland Police and the Australian Crime and Intelligence Commission detailing operations targeting OMCG’s between 2020 and 2023.[11] Also in evidence is the Australian Criminal Intelligence Commission’s Australia Outlaw Motorcycle Gang report. [11] G13, G17, G18.