Haskell and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1415

Haskell and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1415 (20 August 2025)
Applicant/s:  Vicky Lee Haskell
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/3884

Tribunal:Deputy President P Britten-Jones
Place:Sydney (hearing by video)
Date:20 August 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides to revoke the cancellation decision made on 10 April 2024.

.....................[SGD]...................................................
Deputy President P Britten-Jones
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 (Cth) of the mandatory cancellation of Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – the seriousness of long term drug related offending – Applicant has lived the majority of her life in Australia and has a severely disabled child who needs her care - the decision under review is set aside
Legislation
Migration Act 1958 (Cth)
Cases
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons

This is an application for review of a decision to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA
On 10 April 2024, the Applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to her substantial criminal record and because she was serving a sentence of imprisonment of over 12 months.[2]
[2] G-Documents G67, 333-8.
The Applicant sought revocation of the cancellation decision on 18 April 2024 and made representations in support of revocation.[3]
[3] Ibid G12-13, 87-106.
On 2 June 2025, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision).[4] The Applicant applied to the Tribunal for review of the non-revocation decision on 4 June 2025.[5]The Tribunal heard the matter by video on 11 August 2025.
[4] Ibid G2 16-8.
[5] Ibid G1, 1-15.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time…

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: Haskell and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1415
Case: [2025] ARTA 1415
Decision Date: 20 August 2025

CaseChat Overview and Summary

In the case of Haskell and Minister for Immigration and Citizenship, the Applicant, a New Zealand citizen residing in Australia since 1988, faced the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) Visa due to failing the character test. The Applicant had a long history of drug-related offences, dating back to 1999, which culminated in convictions in 2024 for possessing a commercial quantity of dangerous drugs. Despite her criminal history, the Applicant raised concerns about her severely disabled son who relies on her care. The Tribunal was tasked with determining whether there were sufficient grounds for revoking the mandatory cancellation under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The central issue before the Tribunal was whether there existed "another reason" to revoke the mandatory cancellation of the Applicant's visa, apart from her failing the character test. This required a careful evaluation of the Applicant's representations and circumstances, including her long-standing drug addiction, the frequency and seriousness of her offences, and her role as a caregiver for her disabled son. The Tribunal had to balance the principle of protecting the Australian community against the unique personal circumstances of the Applicant.

In its reasoning, the Tribunal noted the principles outlined in Direction 110, which emphasised the protection of the Australian community as a primary consideration. While the Tribunal acknowledged the seriousness of the Applicant's long-term drug-related offending, it also recognised her significant ties to Australia, having lived there for most of her life, and her role as a caregiver for her disabled son. The Tribunal concluded that these factors, particularly the need for the Applicant to care for her son, constituted another reason to revoke the mandatory cancellation decision. The decision under review was set aside, allowing the Applicant the opportunity to remain in Australia under the circumstances presented.

The Tribunal's decision underscores the importance of considering individual circumstances when assessing visa cancellations under the Migration Act, particularly where there are compelling personal reasons that may outweigh the general principles of community protection.

Orders

Orders of the court

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Background

Background to the litigation

Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which I am required to ‘read, identify, understand and evaluate’.[6] As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane,[7] ‘deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending’.[8] [6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [24], [36].[7] [2021] HCA 41.[8] Ibid [14].BACKGROUND The Applicant is a 56-year-old citizen of New Zealand who has been living in Australia since 1988 when she arrived as a 20-year-old. The Applicant’s criminal history begins in 1999 and has been relatively constant up to her final conviction in November 2024.[9] Most offending is for possession of drugs and related offences. The Applicant has a sad history of drug addiction and associated criminal behaviour. Her main concern about being deported is that she has a disabled son with very special needs for whom she cares.[9] G-Documents G3, 39-48.Direction 110 The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.[10] [10] Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘The Direction’). For the purposes of deciding whether to refuse a non-citizen’s visa or whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are 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 measureable 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 non-citizens 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 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. (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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:(a)would be the reason, or a part of the reason, for making the original decision; and(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.(3) As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way that the Minister considers appropriate in the circumstances:(i)a written notice that sets out the original decision; and(ii)particulars of the relevant information; and(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.…(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked.(Emphasis in original) Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.ISSUES BEFORE THE TRIBUNAL The Applicant does not pass the character test prescribed under s 501(6)(a) as she has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which I am required to ‘read, identify, understand and evaluate’.[6] As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane,[7] ‘deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending’.[8] [6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [24], [36].[7] [2021] HCA 41.[8] Ibid [14].BACKGROUND

Ratio Decidendi

Legal Principle Established

The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[13]CONSIDERATION[13] Ibid 7(2).Protection of the Australian community – 8.1 of Direction 110 When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. 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.[14] As required by paragraph 8.1(2) of the Direction, I give consideration below to:(a)the nature and seriousness of the non-citizen’s conduct to date; and(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[14] Ibid 8.1(1).The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110 When considering the nature and seriousness of the Applicant’s conduct, I take into account her criminal activity and other serious conduct. The Applicant has engaged in drug related crime for about 25 years. She was sexually abused when 13 years old and became pregnant as a result. The child was adopted out. There were numerous other traumatic events as a teenager. Her drug use commenced at that time. The most recent and serious offending was committed from 2019 to 2023 which resulted in convictions for possessing a commercial quantity of dangerous drugs (methylamphetamine). The Applicant had been released from immigration detention in July 2016.[15] She recommenced smoking marijuana and then started using methylamphetamine in late 2018. The Applicant said that her life was out of control in 2019. She was struggling to look after her disabled son but at the same time taking and supplying drugs. She said that she needed money to pay for her son’s accommodation. Her house was searched on 12 August 2023, and she was arrested and taken into custody. She pleaded guilty to many charges and was sentenced in February and September 2024 to terms of imprisonment totalling eight years. She became eligible for parole and was released into immigration detention on 19 March 2025.[15] G-Documents G64, 326. The offending from 1999 until 2023 is remarkably frequent. There are 117 convictions recorded against the Applicant for offences the majority of which, if considered individually, would be considered as not very serious but the cumulative effect is very serious. Other more serious offences were dealt with on 23 November 2010 in the District Court of Queensland when the Applicant pleaded guilty to dishonesty offences including counterfeit money, fraud, stealing and driving unregistered and without a licence. She was sentenced to numerous terms of imprisonment of up to three years.