Hall and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 591

Hall and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 591 (20 May 2025)
Applicant:Gabriel David Butch Hall
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/1485

Tribunal:Senior Member S Trotter
Place:Brisbane
Date:20 May 2025

Decision:The Tribunal sets aside the reviewable decision dated 24 February 2025, notified 25 February 2025, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa and in substitution decides that the original decision to cancel the visa is revoked.

Statement made on 20 May 2025 at 8:41am
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct –- the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed - decision under review set aside
Legislation
Migration Act 1958 (Cth)
Cases
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 HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
Plaintiff M1/2021 v Minister for Home Affairs [2022] 96 ALJR 497
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCACFC 6
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
THE APPLICATION

This is an application by the Applicant for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent or Minister) on 24 February 2025, notified on 25 February 2025, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act) (the reviewable decision). All legislative references in these Reasons are to the Act unless stated otherwise.
BACKGROUND
The Applicant, born 1989, is a 35-year-old citizen of New Zealand who first arrived in Australia when he was 2 years old on 7 August 1992.
On 1 August 2024, the Applicant’s Subclass 444 visa was mandatorily cancelled pursuant to subsection 501(3A) on the basis that he had a substantial criminal record and, at the time of the decision, the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory (the original…

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: Hall and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 591
Case: [2025] ARTA 591
Decision Date: 20 May 2025

CaseChat Overview and Summary

The Applicant, a New Zealand citizen who arrived in Australia at a young age, sought review of a decision by a delegate of the Minister for Immigration and Multicultural Affairs not to revoke the mandatory cancellation of his visa under the Migration Act 1958 (Cth). The cancellation was based on his substantial criminal record and a custodial sentence. The Applicant applied for review of the decision, arguing that there were other reasons to revoke the mandatory cancellation, including his ties to Australia and the impact on his minor children. The primary legal issue was whether there were sufficient grounds under subparagraph 501CA(4)(b)(ii) to revoke the mandatory cancellation of the Applicant's visa.

The court considered Ministerial Direction No. 110, which provides guidance on visa decisions and mandatory cancellation revocations. The Direction outlines principles such as the sovereignty of Australia in determining who may enter or remain in the country and the importance of the safety of the Australian community. The court examined the primary and other considerations relevant to the Applicant’s case, including the nature and seriousness of his criminal conduct, the risk he posed to the community, and his ties to Australia. The court also assessed the likelihood of the Applicant reoffending, considering his rehabilitation efforts and support systems in place.

The court found that the Applicant's criminal conduct was very serious, particularly due to its frequency and repetitive nature throughout 2023. While acknowledging the Applicant's efforts at rehabilitation and his ties to Australia, including his family and minor children, the court determined that the risk he posed to the Australian community outweighed these considerations. The court concluded that there were insufficient grounds to revoke the mandatory cancellation of the Applicant’s visa. Consequently, the decision under review was set aside, and the matter was remitted to the Minister for reconsideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application by the Applicant for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent or Minister) on 24 February 2025, notified on 25 February 2025, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act) (the reviewable decision). All legislative references in these Reasons are to the Act unless stated otherwise.BACKGROUND The Applicant, born 1989, is a 35-year-old citizen of New Zealand who first arrived in Australia when he was 2 years old on 7 August 1992. On 1 August 2024, the Applicant’s Subclass 444 visa was mandatorily cancelled pursuant to subsection 501(3A) on the basis that he had a substantial criminal record and, at the time of the decision, the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory (the original decision). The Applicant was notified of the cancellation decision and invited to make representations about revoking the original decision. On 2 August 2024, the Applicant was released on parole and moved to immigration detention at the Brisbane Immigration Detention Centre. On 27 August 2024, the Applicant requested revocation of the mandatory cancellation of his visa and made representations in that regard. On 24 February 2025, a delegate of the Minister decided not to revoke the mandatory cancellation of the Applicant’s visa with that decision notified to the Applicant and a Statement of Reasons provided on 25 February 2025. That is the reviewable decision before the Tribunal. On 2 March 2025, the Applicant applied to the Administrative Review Tribunal (the Tribunal) seeking review of the delegate’s decision. The Applicant and the Respondent’s representative participated in person in a hearing before me on 12 and 13 May 2025, with the Applicant giving sworn evidence. The Applicant was advised of his right to invoke the privilege against self-incrimination prior to him giving evidence and indicated that he understood this right. On 12 May 2025, I also heard sworn oral evidence from the following witnesses called by the Applicant:(a)Tracey-lee Davis (the Applicant’s mother); and(b)Kiara Moore (the Applicant’s partner). In addition to taking into account the oral evidence and submissions, the following documents were before me and marked as Exhibits (or for identification) as follows:(a)Signed statement of Tracey-lee Davis dated 2 February 2025, marked A1;(b)Signed statement of Pete-Michaela Hall (the Applicant’s sister) dated 4 February 2025, marked A2;(c)Signed statement of Kiara Moore dated 4 February 2025, marked A3;(d)Certificate of Completion dated 19 July 2024 in the Applicant’s name for a 6 Hour SSI Explore Program, an Education, Training and Programs Willingness to Engage form completed by the Applicant dated 7 May 2024 and a Relapse Prevention Plan completed by the Applicant dated 19 July 2024, all marked A4;(e)Birth Certificate of the Applicant’s youngest son, marked A5;(f)Respondent’s Statement of Facts, Issues & Contentions (SFIC) dated 28 April 20215, marked R1;(g)Respondent’s Hearing Tender Bundle, comprising indexes and Tribunal G-Documents marked document HTB1 (pages numbered 1 to 119), Applicant’s Evidence marked documents HTB2 to MTB8 (pages numbered 120 to 127), Index and Respondent’s Submissions and Evidence including documents S1 to 152 (pages numbered 128 to 621), marked R2;(h)Signed statement of George Bedford dated 4 February 2024, marked R3;[1](i)Signed statement of Gregory Macaskill dated 4 February 2024, marked R4;[2] and (j)Three-page resume of the Applicant.[3][1] As discussed at hearing this statement was not included in the Respondent’s documents but was separately tendered by the Respondent’s representative at hearing upon seeking instructions that the document had been received by email by the Respondent from the Applicant on 4 February 2025. Although noted on the face of the statement to be dated 4 February 2024, I am satisfied that date is an error and the date should be 4 February 2025.[2] Ibid.[3] As discussed at hearing this document was not included in the Respondent’s documents but was separately tendered by the Respondent’s representative at hearing upon seeking instructions that the document had been received by email by the Respondent from the Applicant on 4 February 2025.LEGISLATIVE FRAMEWORK AND ISSUES

Evidence

Evidence Before The Court

Otherwise, the information is that following a period of incarceration from July to August 2023, the Applicant continued to offend upon release.Evidence of rehabilitation The Applicant in his revocation request states as follows in relation to courses or programs completed by him to avoid further offending (unedited):[21]I have completed a rehabilitation program with Drug Arm and participated in a peer group in detention called Break Free. Drug Arm has taught me how important support is and how to make use of a relapse prevention plan. Both of these courses have helped me understand my offending ensuring it won’t happen again.[21] Exhibit R2, page 73 The Applicant has provided documentary evidence demonstrating that he completed a 6-hour SSI Explore Program whilst incarcerated which included the preparation of a relapse prevention plan by him.[22] The Applicant’s evidence included that he was limited in what rehabilitation courses were available to him when incarcerated. He said he signed up for everything available, including a more extended SSI Explore Program but the 6-hour program was the only one for which he was accepted when incarcerated. He further stated that more rehabilitation options have been available to him in detention and he takes every opportunity available and attends a weekly program.Conclusion: the likelihood of the Applicant engaging in further criminal conduct or other serious conduct[22] Exhibit A4 The Respondent’s written and oral submissions included that the Applicant has a clear history of resorting to drug use when stressed, that there is an absence of evidence that he has taken meaningful steps to address the underlying causes of his offending or substance use and that he has not spent any time in the community since his most recent offending such that the Applicant remains an ongoing moderate to high risk of reoffending. The Applicant submitted that despite the identified issues, he now is very aware of the consequences of his offending, including the implications for his migration status. He said that he has identified that he cannot again live on the Gold Coast, where he was influenced in a negative manner and that his immediate plans if releases to the community would be to live with his mother in Sydney and to get himself set up and save money, noting that he would also have the support of his childhood friends in Sydney. He said one of his childhood friends, Mr Bedford, has indicated that work will be available to him to assist him in re-establishing himself. The Applicant said that, ultimately, he and Ms Moore will be looking to reside together but the focus initially will be on his rehabilitation which is best supported for him back with his mother. The Applicant also spoke of rehabilitation and support options he has explored that he could avail upon release, including an Advanced Health Plan to access 10 sessions of psychological counselling and connecting with either Alcoholics Anonymous or Narcotics Anonymous (although is preference would be to connect with Alcoholics Anonymous as his view is that he should restrain from associating with others that may have drug issues). Ms Davis’ and Ms Moore’s evidence was consistent with these plans expressed by the Applicant.

Decision

Reasons for decision

This paragraph has no application in the circumstances of the Applicant’s conduct.Conclusion: The nature and seriousness of the conduct The Applicant acknowledges and accepts that his offending overall constitutes very serious conduct including because of the frequency and repetitive nature throughout 2023. The Respondent contends that the Applicant’s offending should be considered very serious. I have had regard to each of the subparagraphs in paragraph 8.1.1(1) of the Direction to the extent relevant. Having regard to the matters canvassed in relation to each relevant paragraph, I find that the Applicant’s offences are all very serious, particularly in the context of the frequency and repeated nature of the offences throughout 2023 and that the Applicant’s overall criminal and other conduct to date is very serious.8.1.2 – The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct Paragraph 8.1.2(1) of the Direction states that in considering the need to protect the Australian Community from harm, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. As required by paragraph 8.1.2(2) of the Direction, in assessing the risk to the Australian community, I have had regard to the following factors cumulatively where relevant:(a)the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct;(b)the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the Applicant re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.8.1.2(2)(a) – the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct As regards the nature and seriousness of the criminal offending, the Applicant accepted that the offending constituted very serious offending given that it impacted members of the Australian community. I am satisfied that continued offending of the nature of breaking and entering and stealing would cause harm to individuals and the Australian community, including psychologist and financial harm.8.1.2(2)(b) – the likelihood of the Applicant engaging in further criminal conduct or other serious conduct

Ratio Decidendi

Legal Principle Established

As identified by the Respondent in its SFIC, and not disputed by the Applicant, the issue before me is therefore whether, pursuant to subparagraph 501CA(4)(b)(ii), there is another reason to revoke the mandatory cancellation of the Applicant’s visa.CONSIDERATIONIS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED? In his revocation request of 27 August 2024,[9] the Applicant, amongst other things, provided details of his family who reside in Australia, detailed his relationship with minor children in Australia and detailed the impact upon his immediate and extended family in the event of a negative section 501 decision outcome.[9] Exhibit R2, pages 61 to 77. In considering whether there is another reason why the decision to cancel the Applicant’s visa should be revoked, pursuant to subsection 499(2A) I must comply with any written directions given by the Minister pursuant to subsection 499(1). Pursuant to subsection 499(1), on 7 June 2024, the Minister issued Direction No. 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) which commenced operation on 21 June 2024. I am required to comply with the Direction. As stated in paragraph 5.1(4) of the Direction, the purpose of the Direction is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA. I must have regard to the Direction in considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains eight principles which provide the framework within which decision-makers should approach their task, relevantly in relation to this application, of deciding whether to revoke a mandatory cancellation of a visa under section 501CA, as follows:(1)Australia 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 non-citizens 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.(2)The safety of the Australian Community is the highest priority of the Australian Government.(3)Non-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.(4)The 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 measurable risk of causing physical harm to the Australian community.(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.(6)With 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.(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen'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.(8)The 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.