Francisco and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1797

Francisco and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1797 (15 September 2025)
Applicant/s:  Marcio Rogerio Da Silva Francisco
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:               2025/4173
Tribunal:Senior Member K. Raif
Place:Sydney
Date:15 September 2025
Decision:The Tribunal affirms the decision under review.

Statement made on 15 September 2025 at 9:22am
Catchwords
MIGRATION – Mandatory cancellation of Applicant’s Class BB Resident Return visa – Ministerial Direction 110 Applied – Applicant does not pass character test – Substantial criminal record – whether there is another reason to revoke cancellation – Applicant arrived in Australia as a child – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Francisco v R [2019] NSWDC 720
FYBR v Minister for Home Affairs [2019] FCAFC 185
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Afu v Minister for Home Affairs [2018] FCA 1311
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
FYBR v Minister for Home Affairs [2019] FCA 500
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Secondary Materials
Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’)
Statement of Reasons
BACKGROUND

This is an application for review of a decision of the delegate of the Minister for Immigration (‘the Respondent’) not to revoke the mandatory cancellation of a Class BB Resident Return Visa (‘RRV’) previously held by the Applicant.
The Applicant is a national of Portugal, born in February 1980. The Applicant travelled to Australia in November 1986 and was subsequently granted a number of visas. He was most recently granted an RRV in May 2012.
In September 2019, the Applicant’s visa was cancelled under s. 501(3A) of the Migration Act 1958 (Cth) (‘Act’), and the delegate decided not to revoke the cancellation. In July 2020, the Tribunal (differently constituted) set aside the delegate’s decision and the Applicant’s visa was reinstated.
The Applicant has been convicted of multiple offences set out below. Notably, in February 2023, the Applicant was convicted of offences for which he was sentenced to 18 months imprisonment (aggregate). On 23 October 2023, the Applicant’s visa was mandatorily cancelled. In November 2023 the Applicant made representations to revoke the cancellation and on 12 June 2025 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant seeks a review of that decision.
The Applicant appeared before the Tribunal on 10 and 12 September 2025. For the following reasons, the Tribunal has concluded that the decision dated 12 June 2025 not to revoke the cancellation of the Applicant’s visa should be affirmed.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
(3A) The Minister must cancel a visa that has been granted to a person if:
(i)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph…

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: Francisco and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1797
Case: [2025] ARTA 1797
Decision Date: 15 September 2025

CaseChat Overview and Summary

The case before the tribunal involved the Applicant, whose Class BB Resident Return visa was subject to mandatory cancellation under Ministerial Direction 110. The primary issue was whether the decision to cancel the Applicant's visa should be revoked. The Applicant contested the cancellation, arguing that there were compelling reasons to revoke the decision. The tribunal was required to balance the primary considerations outlined in Direction 110, such as the protection of the Australian community, against other factors like the Applicant's ties to Australia and the impact of removal on his family.

The tribunal considered various factors including the nature and seriousness of the Applicant's criminal conduct, which included violent offences and family violence. The tribunal noted the Applicant's substantial criminal record and the risk of reoffending, weighing heavily against the revocation of the visa cancellation. The tribunal also assessed the strength of the Applicant's ties to Australia, his family connections, and the potential impediments to his removal, which weighed in favour of revoking the cancellation. Despite acknowledging the significant personal and family connections the Applicant had to Australia, the tribunal determined that the primary considerations of community protection, the nature of the offending, and community expectations outweighed these factors.

Consequently, the tribunal upheld the decision to cancel the Applicant's visa, finding that the protection of the Australian community and the nature of the Applicant's offences were of paramount importance. The tribunal concluded that the Applicant's substantial criminal history and risk of reoffending justified maintaining the visa cancellation. Given the weight of these considerations, the tribunal decided that the best interests of the community and the integrity of Australia's immigration policies required the cancellation to stand.

The tribunal's final order affirmed the decision to cancel the Applicant's visa, rejecting the Applicant's appeal. The Applicant was precluded from returning to Australia, in line with the intended consequence of the visa cancellation.

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 is no evidence before the Tribunal to indicate that a decision not to revoke the cancellation of the Applicant’s visa would significantly compromise the delivery of a major project or of an important service in Australia. This consideration is neutral. CONCLUSION The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked. The Tribunal has determined that the Applicant had committed serious offences, and that if he were to commit other offences, there would be a risk of harm to the community. The Tribunal has formed the view that there remains a real risk of the Applicant reoffending because of the limited evidence of the Applicant’s rehabilitation being effective and concerning his ability to abstain from drug use. The Tribunal has determined that the protection of the Australian community weighs very heavily against the revocation. The Applicant had committed family violence offending, and that also weighs against the revocation. The Tribunal has determined that the expectations of the community weigh against the revocation. The Tribunal gives these considerations significant weight. The Tribunal acknowledges that paragraph 7(2) of Direction 110 states that the primary consideration of protection of the Australian community is generally to be given greater weight than other primary considerations. The Tribunal accepts that there may be a significant impediment to the Applicant if he is removed, noting in particular the length of time he has lived in Australia and lack of any meaningful connection to Portugal, and also having regard to the Applicant’s personal circumstances, his family and other connections in Australia and barriers to reintegration in his home country. The Tribunal finds that the strength, nature and duration of ties, as well as impediments of removal, are considerations that weigh very heavily in favour of the revocation. The Tribunal has decided that the best interests of various children may be better served if the Applicant remains in Australia, but the Tribunal gives this consideration little weight in favour of the revocation, given the nature of the Applicant’s relationship with these children (including his own two minor children and various other relatives). The Tribunal also gives little weight in favour of revocation to the legal consequences, given that the Applicant will be precluded from returning to Australia, but also noting that that is the intended consequence of the decision. The business interests are neutral. Having carefully considered all the circumstances, the Tribunal has decided to give greatest weight to the primary considerations of protection of the Australian community, the fact that some of the offending conduct constitutes family violence, and the expectations of the Australian community. In the particular circumstances of this case, The Tribunal has decided that these considerations outweigh other considerations.

Ratio Decidendi

Legal Principle Established

The Tribunal’s considerations are set out below with regard to Direction 110.Primary considerations Protection of the Australian Community Paragraph 8.1 of Direction 110 provides in part as follows:Protection of the Australian community (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… 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. (2)Decision-makers should also give consideration to:a)the nature and seriousness of the non-citizen’s conduct to date; andb)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.The nature and seriousness of the Applicant’s conduct to date The Direction provides that violent crimes and crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed) are viewed very seriously by the Australian Government and the Australian community. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness. In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the Police Facts Sheets, court documents and sentencing remarks, where available. 2023 offending There are before the Tribunal the sentencing remarks of Acting Magistrate Rabbidge made on 28 September 2023 in relation to the assault of police officer offence. The facts of the offending are described as follows. The police became aware of an incident near a fast- food restaurant. When the Applicant saw the police, he ran away with the police running after him. The Applicant then turned around and charged towards a constable, shoulder-barging the officer. As the Applicant was on the ground, he lashed out in the scuffle towards a constable and connected with the officer in the face. The Tribunal has been provided with the remarks of Magistrate O’Brien made on 3 February 2023 in relation to cause obstruction and related offences. The circumstances of the offences are described as follows. On 25 June 2021 the Applicant and his co-accused entered the water catchment area of Avon Dam with the intention to commit an indictable offence. The Applicant drove a motor vehicle along railway tracks and when becoming aware of a train, the Applicant warned the driver of the presence of his car and the train stopped before colliding with the car. The Applicant then returned to the car, crossed the tracks and continued to drive before the vehicle slid down an embankment and rested against the tree. When the police attended, the Applicant was found in the driver’s seat and was arrested. His Honour states that the Applicant told the police he was ‘only four-wheel driving’ but within the vehicle the police located a tool bag, electrical items and hand tools used for electrical work. It is reported that during the police interview the Applicant claimed he did not know it was an offence to enter the catchment but acknowledged it was an offence to open the locked gate. His Honour stated that he found the Applicant’s responses in the record of interview to be ‘entirely disingenuous and self-serving’ and rejected the claim that he was in the catchment area for the purpose of four-wheel driving, noting that the vehicle passed through a number of locked gates with the locks being removed at each gate. 2019 offending