Gibson and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 2063

Gibson and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2063 (1 October 2025)

Applicant/s:  Suzanne Edith Gibson

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/4346

Tribunal:General Member L M Gallagher

Place:Perth

Date of decision:                 1 October 2025

Date of written reasons:     14 October 2025

On 1 October 2025, the Tribunal made the following decision:

The decision of the delegate of the Respondent dated 8 July 2025 to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s (Class BB) (Subclass 155) Five Year Resident Return visa under s 501CA(4) of the Migration Act 1958 (Cth) is set aside and substituted with the decision that the cancellation of the Applicant’s (Class BB) (Subclass 155) Five Year Resident Return visa is revoked under s 501CA(4) of the Migration Act 1958 (Cth).

These are the Tribunal’s written reasons.

Statement made on 14 October 2025 at 11:32am

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct  – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – Applicant is a 47-year-old citizen of the United Kingdom – extent of impediments if returned to United Kingdom or Northern Ireland – Non-Revocation Decision is set aside

LEGISLATION

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

AJL20 v Commonwealth of Australia [2020] FCA 1305

Bartlett and Minister for Immigration and Border Protections (Migration) [2017] AATA 1561

BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

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

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

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121

Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32

QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1

Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666

Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208

SECONDARY MATERIALS

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 99: Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (23 January 2023)

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501C (21 June 2024)

Statement of Reasons

THE APPLICATION

  1. The Applicant seeks review of a decision of a delegate of the Respondent (the ‘Delegate’)…

Continue reading Gibson and Minister for Immigration and Citizenship (Migrati...

Sign in free to access the full text

Details
AGLC
Gibson and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2063
Case
[2025] ARTA 2063
Decision Date

CaseChat Overview and Summary

In the case of Gibson and Minister for Immigration and Citizenship, the Applicant, a 47-year-old citizen of the United Kingdom, sought a review of the Minister’s decision not to revoke the mandatory cancellation of her visa. The Applicant had previously been sentenced to a total term of imprisonment of 12 months or more, thereby failing to pass the character test under the Migration Act. The primary issue before the Tribunal was whether there was ‘another reason’ to revoke the cancellation decision, given the Applicant's failure to pass the character test.

The Tribunal was required to consider the statutory framework and relevant guidelines, particularly Direction no. 110, which outlines the primary and other considerations in revoking a mandatory cancellation of a visa. These include the nature and seriousness of the criminal offending, the risk of reoffending, the strength and duration of ties to Australia, and the best interests of any minor children. The Tribunal had to balance these considerations against the expectation of the Australian community that the government should deny entry or revoke visas for those who engage in serious conduct.

After considering the evidence presented and the statutory obligations, the Tribunal found that there were sufficient countervailing considerations to justify revoking the mandatory cancellation of the Applicant's visa. These considerations included her ties to Australia, the best interests of her minor children, and the expectations of the Australian community. The Tribunal concluded that the Minister's decision not to revoke the cancellation was not supported by the evidence and set aside the decision.

The Tribunal ordered that the Minister for Immigration and Citizenship revoke the mandatory cancellation of the Applicant's visa, thereby allowing her to remain in Australia. This decision underscores the importance of a balanced approach when considering the revocation of a visa cancellation, particularly in light of the significant impact on the individual and their family.

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

Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the Cancellation Decision should be revoked.[20] [20] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].THE HEARING AND THE EVIDENCE The hearing was held on 10 and 11 September 2025 at the Tribunal’s Perth Registry. The Applicant was represented by Ms Alice Graziotti of Estrin Saul Lawyers and the Respondent was represented by Ms Miriam Williams of MinterEllison. Both parties’ representatives appeared by Microsoft Teams. The Applicant appeared in person. At the hearing, the Applicant gave evidence and was cross-examined. The Applicant also called the following witnesses, who appeared in person:(a)Mr Damien Parker (the Applicant’s fiancée);(b)Ms Gillian Flahey (the Applicant’s sister); and(c)Ms Alison Gibson (the Applicant’s twin sister). The Tribunal marked the Joint Hearing Book prepared by the Respondent as an exhibit (Exhibit R1). The Tribunal has considered the Applicant’s statements, the statements of the witnesses listed above, along with those statements provided by family and friends.[21][21] Including but not limited to those in Exhibit R1, Document 4 (G12 to G17), 5, 6 and 8. At the hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘Direction no. 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’ (‘Direction no. 110’), in their oral closing submissions. DOES THE APPLICANT PASS THE CHARACTER TEST? As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case, a person has a ‘substantial criminal record’ if they have been ‘sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more’.[22] Failure to pass the character test arises as a matter of law.[23][22] Migration Act s 501(7)(d).[23] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, 685 [63]. As noted above, on 14 January 2025, the Applicant was sentenced in relation to the index offending to concurrent terms of imprisonment for six months and one term of imprisonment for nine months. As the Applicant has been sentenced to a total term of imprisonment of 12 months or more, she does not pass the character test by operation of s 501(7)(d) of the Migration Act. The Applicant agrees this is the case.[24][24] Exhibit R1, Document 1 [32]. Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[25] [25] Migration Act s 501CA(4)(b)(i).CONSIDERATION OF REVOCATION

Decision

Reasons for decision

On 6 March 2025, the Delegate cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of ss 501(6)(a) and 501(7)(c), with her serving a sentence of imprisonment of 12 months or more on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State, or Territory (the ‘Cancellation Decision’).[12] The Applicant was notified by letter of the same date, which she received by hand delivery to Bandyup Women’s Prison on 7 March 2025.[13][12] Exhibit R1, Document 4, G19.[13] Exhibit R1, Document 4, G11, pp 112–113. On 31 March 2025, the Applicant made a request for revocation of the Cancellation Decision under s 501CA of the Migration Act and made representations to the Delegate in support of her request.[14][14] Exhibit R1, Document 4, G11 and G12. On 8 July 2025, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, therefore the power under s 501CA(4) was not enlivened and the Delegate made the Reviewable Decision.[15] The Applicant was notified of the Reviewable Decision on 9 July 2025, which she received by hand delivery at Perth Immigration Detention Centre (PIDC).[16][15] Exhibit R1, Document 4, G4 and G5.[16] Exhibit R1, Document 4, G3 and G2, p 50. On 29 May 2025, the Applicant was released on parole into immigration detention. On 17 July 2025, the Applicant lodged an application for review in the Tribunal, for review of the Reviewable Decision.[17][17] Exhibit R1, Document 4, G2.ISSUES The issues before the Tribunal are:(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.[18]LEGISLATIVE FRAMEWORK[18] See Migration Act s 501CA(4).Migration Act The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is ‘another reason’ that the decision to cancel or refuse a visa should be revoked. The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:6 For the purposes of this section, a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7)); …(Original emphasis.) A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:7 For the purposes of the character test, a person has a substantial criminal record if: …(c)the person has been sentenced to a term of imprisonment of 12 months or more; …(Original emphasis.)

Ratio Decidendi

Legal Principle Established

Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[25] [25] Migration Act s 501CA(4)(b)(i).CONSIDERATION OF REVOCATION As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine, having regard to the primary and other considerations contained within Direction no. 110, whether there is ‘another reason’ why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[26][26] Migration Act s 501CA(4)(b)(ii). The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably, and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.Direction no. 110 On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction no. 99.[27][27] Direction no. 110, paragraphs 2–3. An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[28] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction [28] Direction no. 110, paragraph 5.1(4). [29] Direction no. 110, paragraph 6. no. 110 where relevant to the decision.[29] Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’, including paragraph 5.1(3) which provides that: Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case. Paragraph 5.2 of Direction no. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under s 501CA’ and are expressed as follows: 1Australia 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 non­citizens 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.2The safety of the Australian Community is the highest priority of the Australian Government. 3Non-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.4The 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 [sic] risk of causing physical harm to the Australian community.5Australia 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.6With 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. 7Decision-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. 8The 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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.