Foleti and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 2081

Foleti and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2081 (14 October 2025)
Applicant:Maafu Lele Foleti
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4424

Tribunal:General Member S Evans
Place:Sydney
Date:14 October 2025

Decision:The Tribunal affirms the decision under review.

.........[SGD]..............................
General Member S Evans
CATCHWORDS
MIGRATION – Mandatory cancellation of Applicant’s visa – substantial criminal record –- Direction 110 – history of family violence offences – whether there is ‘another reason’ to revoke mandatory cancellation – citizen of Tonga – substantial risk of reoffending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 165
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
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
INTRODUCTION

Maafu Lele Foleti (the Applicant) is a 48-year-old Tongan national who has resided in Australia for 43 years, having migrated to Australia with his family when he five years old.
On 30 January 2024 the Applicant was convicted in the local Court of New South Wales at Mount Druitt of two counts of common assault (DV) and stalk/intimidate intend fear physical etc harm (domestic) and sentenced to an aggregate term of imprisonment of 30 months.
On 19 August 2024 the Applicant’s Class BB Subclass 155 Resident Return visa was mandatorily cancelled under s501(3A) of the Migration Act 1958 (Cth) (the Act) as he was deemed not to pass the character test by of the operation of s501(7)(c) and because he was serving a sentence of imprisonment, on a full-time basis, for an offence against the law of the Commonwealth, a State or Territory.
The Applicant requested the mandatory cancellation of his visa be revoked pursuant to s501CA(4). On 22 July 2025 a delegate of the Minister for Immigration and Citizenship (the Respondent) decided under not to revoke the mandatory cancellation of the visa. The Applicant seeks review of the delegate’s decision (the reviewable decision) at the Tribunal.
For the reasons that follow, the reviewable decision will be affirmed.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under s501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of paragraphs 501(6)(a) and 501(7)(c) of the Act.
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Minister may revoke the original cancellation decision pursuant to s501CA(4) of the Act. Paragraph 500(1)(ba) of…

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: Foleti and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2081
Case: [2025] ARTA 2081
Decision Date: 14 October 2025

CaseChat Overview and Summary

The Applicant, a citizen of Tonga, challenged the mandatory cancellation of his visa under Direction 110. The dispute centered on whether there were grounds to revoke the mandatory cancellation, given his substantial criminal record, history of family violence, and potential risk of reoffending. The case was heard and determined in the Administrative Appeals Tribunal (AAT). The primary legal issues revolved around whether the Tribunal could be satisfied that there was another reason to revoke the mandatory cancellation of the Applicant's visa, given his extensive criminal history and the risk he posed to the Australian community. Specifically, the court had to consider whether the Applicant's conduct warranted an exception to the mandatory cancellation under the Migration Act.

The Tribunal carefully reviewed the Applicant's extensive criminal history, which included serious offences such as recklessly causing serious injury and armed robbery. It was noted that the Applicant had a substantial criminal record, which alone triggered the mandatory cancellation under section 501(6)(a) of the Migration Act. The key issue was whether there was another reason to revoke the mandatory cancellation, focusing on the risk of reoffending and the seriousness of the Applicant's conduct. The Tribunal found that the Applicant had not been deterred by past convictions or the prospect of visa cancellation and had a significant and real risk of reoffending, given his history of substance abuse and family violence. The Tribunal concluded that the Applicant's extensive offending history and the serious nature of his family violence conduct weighed heavily against revoking the mandatory cancellation.

Based on the evidence and the considerations outlined, the Tribunal affirmed the decision to maintain the mandatory cancellation of the Applicant's visa. The Tribunal found that the Applicant's conduct, particularly his history of family violence and the risk of reoffending, posed a significant threat to the Australian community. The primary consideration of protecting the community from criminal or other serious conduct was paramount. Consequently, the Tribunal was not satisfied that there was another reason to revoke the mandatory cancellation of the Applicant'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

Having regard to the evidence I have outlined, I consider there is a significant and real risk that the Applicant may reoffend should his visa be reinstated. The Applicant has not been deterred from offending by his past convictions or the prospect of having his visa cancelled. He has known for two decades that his substance abuse was a key contributor to his offending, but there remains limited evidence of meaningful rehabilitation given the extent and duration of his substance abuse and its devastating consequences. Overall, the protective factors he has cited are insufficient in the context of his extensive offending history. Protection of the Australian community – conclusion I find there is a real and significant risk that the Applicant may reoffend should he return to the Australian community. The harm caused by further offending of a similar nature would be very serious. The primary consideration of the risk to the Australian community weighs very heavily against revoking the mandatory cancellation of the Applicant’s visa. Primary consideration 2: Family Violence committed by the non-citizen Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Subsection 8.2(1) of Direction 110 provides that the Australian government has ‘serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia’. Paragraph 8.2(3) of the Direction specifies the following factors must be considered where relevant when considering the seriousness of family violence: a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;b)the cumulative effect of repeated acts of family violence;c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:i.the extent to which the person accepts responsibility for their family violence related conduct;ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);iii.efforts to address factors which contributed to their conduct; andd)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the noncitizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence. The Applicant accepts that his conduct against his former partners constitutes family violence as defined in the Direction and that it is serious.[24] I have outlined the serious nature of the Applicant’s family violence conduct above. The Applicant’s family violence conduct occurred as recently as November and December 2023, and an Apprehended Domestic Violence Order remains in place to protect the victim with respect to the 24 January 2024 convictions. [24] Applicant’s SFIC [45].

Ratio Decidendi

Legal Principle Established

The Applicant agrees with the Respondent that he does not pass the character test by operation of s 501(6)(a) of the Act because he has a ‘substantial criminal record’ as defined in s501(7)(c). As the Applicant does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked. CONSIDERATIONS AND REASONING Primary Consideration 1: Protection of the Australian Community The Direction requires me to have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.(1) of the Direction states: (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. Paragraph 8.1.(1) 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 Paragraph 8.1.1 of Direction 110 provides factors that I must have regard to when considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date. During the hearing, the Applicant was taken to police and court documents relating to his offending. The documents included NSW Police incident records and narratives produced under summons. He was asked to comment on reports of incidents alleged to have taken place or been reported on 14 September 2020, 2 December 2018 and 5 April 2017.[1] The Applicant gave evidence he could not recall the incidents, or denied the details as recorded by police, and they have not taken into account in making this decision. [1] R2 39, 42, 57. The Applicant has an extensive history of criminal offending which is detailed in a Check Results Report run on 10 July 2024 and set out at ‘Annexure A’ of these reasons.[2] Recklessly cause serious injury offence [2] G3, 40-44. On 5 July 1997 the Applicant was involved in an altercation at a nightclub. The details of the offending are set out in the sentencing remarks of Judge Hassett in the Melbourne County Court. The Applicant, who was 20 years old at the time, intervened in an altercation between two people he did not know and sought to impulsively break up the incident. He took the ear of one of the men in his mouth and bit on it. The victim’s ear was lacerated and half of the bottom of the man’s ear was torn away. Judge Hassett, who was satisfied that the Applicant did not intend to bite the victims ear off, sentenced the Applicant to 15 months imprisonment (suspended for 2 years) for recklessly cause serious injury.[3] Armed robbery offence [3] G10, 85-93.