HDTY and Minister for Immigration and Multicultural Affairs (Migration)

Case [2025] ARTA 98

HDTY and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 98 (14 February 2025)

Applicant:HDTY

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2022/1500

Tribunal:Senior Member A. Nikolic  

Place:Melbourne

Date:14 February 2025  

Decision:The Tribunal affirms the decision under review.

...................[SGD].....................................................

Senior Member A. Nikolic

Catchwords 
MIGRATION – mandatory visa cancellation – citizen of South Sudan – Class XB (Subclass 202) Global Special Humanitarian Visa – kidnap person who suffers grievous bodily harm – failure to pass good character test – substantial criminal record – previous non-revocation decision by Tribunal – Federal Court of Australia quashed Tribunal decision – application remitted – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 110 applied – decision affirmed

Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)

Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
HDTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1436
HDTY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 633
Hughes v The Queen (2017) 263 CLR 338
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196
JNMQ vMinister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1375
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) ALJR 475
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 276 CLR 80

Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
QDQY v…

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Details
AGLC
HDTY and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 98
Case
[2025] ARTA 98
Decision Date

CaseChat Overview and Summary

The case involves an Applicant, a citizen of South Sudan, who arrived in Australia as a minor and holds a Class XB (Subclass 202) Global Special Humanitarian Visa. His visa was cancelled due to his failure to meet the good character test, primarily due to a substantial criminal record that includes a conviction for kidnapping with intent to hold for ransom, resulting in grievous bodily harm to the victim. The Minister for Immigration and Multicultural Affairs decided not to revoke the visa cancellation, a decision which the Applicant sought to have reviewed by the Tribunal.

The legal issues in this case centre on the mandatory cancellation of the Applicant's visa under the Migration Act 1958 (Cth), and whether there are sufficient grounds to revoke this cancellation. Specifically, the Tribunal had to determine if the Applicant's conduct, as outlined in Ministerial Direction No. 110, warranted the protection of the Australian community from his potential criminal activities.

The Tribunal considered the nature and seriousness of the Applicant’s criminal conduct, including the violent and sexual nature of the offence, the impact on the victim, and the risk of reoffending. It also took into account the Applicant's failure to engage with the proceedings and his criminal history. Despite the Applicant's non-compliance with procedural requirements and failure to submit any evidence, the Tribunal affirmed the Minister's decision not to revoke the visa cancellation, citing the significant risk posed by the Applicant to the Australian community. The Tribunal concluded that the mandatory visa cancellation should stand as it was in the best interest of community protection.

The final orders of the Tribunal are to affirm the Minister's decision not to revoke the visa cancellation, and to direct the Applicant to abide by the conditions of his most recent bridging visa, which includes requirements such as telephone reporting and adherence to conduct conditions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal affirms the reviewable decision. BACKGROUND The Applicant is 32 years old and was born in what was then called Sudan. He arrived in Australia on 31 October 2006 as a 13-year-old and has not departed since.[2] [2] Ibid 78. The Applicant has a criminal history in Australia. This includes a conviction in late 2020 for kidnapping a person with the intent of holding them for ransom, during which the victim suffered grievous bodily harm.[3] The Applicant was sentenced to 42 months and 22 days of imprisonment, with a non-parole period of 24 months.[4][3] Ibid 36-43.[4] Ibid 43. On 9 November 2020, while the Applicant was serving a sentence of full-time imprisonment, the Respondent cancelled his visa.[5] He made representations to have the cancellation decision revoked.[6][5] Ibid 79-85.[6] Ibid 46-77. On 16 February 2022, the Respondent decided not to revoke the cancellation decision (‘non-revocation decision’).[7] The Applicant asked the Tribunal to review this.[8][7] Ibid 20-33.[8] Ibid 6–11. In May 2022, a differently constituted Tribunal affirmed the non-revocation decision.[9] The Applicant appealed this to the Federal Court of Australia (‘FCA’). [9] HDTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1436. On 14 June 2024, the FCA granted an extension of time, quashed the Tribunal’s May 2022 decision, and remitted the matter for re-hearing.[10] The following then occurred:[10] Exhibit R1, 702; HDTY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 633.(a)On 21 August 2024, the Tribunal held a case management hearing to issue scheduling orders. The Applicant was unrepresented. The Tribunal provided him with contact details for potential sources of pro bono assistance and an outline of a Statement of Facts, Issues and Contentions.[11] [11] A Statement of Facts, Issues and Contentions (‘SFIC’) is lodged by parties during the pre-hearing phase and is comparable to a pleadings document in a court proceeding. It serves to identify / narrow the issues in dispute and helps ensure both sides have an opportunity to respond to each other’s case. (b)The Applicant failed to submit any documents by the due date of 11 October 2024, following which the Tribunal emailed him to enquire why. He did not respond.(c)The Applicant failed to appear at a non-compliance hearing. Amended scheduling orders were issued extending the time for him to submit documents until 10 January 2025. He again failed to do so and did not respond to emails or telephone calls.(d)The Applicant failed to appear at the hearing on 21 January 2025. Mr White submitted that the Applicant had received several bridging visas since August 2024, which allowed him to reside in the community. A summary of these visas follows:(i)On 15 August 2024, the Applicant was granted a Class WR Bridging R (Subclass 070) visa (‘BVR’) by a delegate of the Respondent.[12] (ii)On 17 October 2024, the Minister for Immigration and Multicultural Affairs exercised his personal intervention power under s 195A of the Act to grant the Applicant a Bridging E (Subclass 050) visa (‘BVE’).[13] (iii)On 18 November 2024, the Assistant Minister for Citizenship and Multicultural Affairs granted the Applicant a further BVE.[14] (iv)On 19 December 2024, the Applicant was granted a BVR by the Assistant Minister.[15] This requires the Applicant to abide by conditions such as telephone reporting and conduct requirements, rather than more invasive measures such as a curfew or wearing a remote monitoring device.(e)Mr White informed the Tribunal that the Applicant had received the December 2024 BVR in person, during which he confirmed that his contact details were unchanged from those previously advised to the Tribunal and Respondent. The Tribunal made a further (unsuccessful) attempt to contact the Applicant on 21 January 2025. The Applicant failed to appear at the resumed hearing on 22 January 2025.[12] Exhibit R2, 85-96.[13] Ibid 97-99.[14] Ibid 100-102.[15] Ibid 327-337.

Evidence

Evidence Before The Court

The Applicant did not file any materials despite having several opportunities during the pre-hearing phase to do so. Exhibit R1, however, contains a two-page statement he filed with the Respondent in 2021, and an undated statement filed on 20 April 2022 for the first Tribunal hearing.[23] The transcript from the 2022 hearing is also in evidence.[24][23] Exhibit R1, 66-67; 110-112.[24] Exhibit R2, 103-265.Respondent’s evidence The Tribunal has considered the Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) dated 4 December 2024. Mr White also made oral submissions. PRIMARY CONSIDERATIONS Protection of the Australian community from criminal or other serious conduct Clause 8.1 of the Direction states: (1) When considering protection of the Australian community, decision-makers should keep in mind that 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. (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. Under cl 8.1.1(1) of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:i.violent and/or sexual crimes;ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;(f)the cumulative effect of repeated offending;(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;(h)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.Tribunal consideration: The nature and seriousness of the conduct

Decision

Reasons for decision

On 16 February 2022, the Respondent decided not to revoke the cancellation decision (‘non-revocation decision’).[7] The Applicant asked the Tribunal to review this.[8][7] Ibid 20-33.[8] Ibid 6–11. In May 2022, a differently constituted Tribunal affirmed the non-revocation decision.[9] The Applicant appealed this to the Federal Court of Australia (‘FCA’). [9] HDTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1436. On 14 June 2024, the FCA granted an extension of time, quashed the Tribunal’s May 2022 decision, and remitted the matter for re-hearing.[10] The following then occurred:[10] Exhibit R1, 702; HDTY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 633.(a)On 21 August 2024, the Tribunal held a case management hearing to issue scheduling orders. The Applicant was unrepresented. The Tribunal provided him with contact details for potential sources of pro bono assistance and an outline of a Statement of Facts, Issues and Contentions.[11] [11] A Statement of Facts, Issues and Contentions (‘SFIC’) is lodged by parties during the pre-hearing phase and is comparable to a pleadings document in a court proceeding. It serves to identify / narrow the issues in dispute and helps ensure both sides have an opportunity to respond to each other’s case. (b)The Applicant failed to submit any documents by the due date of 11 October 2024, following which the Tribunal emailed him to enquire why. He did not respond.(c)The Applicant failed to appear at a non-compliance hearing. Amended scheduling orders were issued extending the time for him to submit documents until 10 January 2025. He again failed to do so and did not respond to emails or telephone calls.(d)The Applicant failed to appear at the hearing on 21 January 2025. Mr White submitted that the Applicant had received several bridging visas since August 2024, which allowed him to reside in the community. A summary of these visas follows:(i)On 15 August 2024, the Applicant was granted a Class WR Bridging R (Subclass 070) visa (‘BVR’) by a delegate of the Respondent.[12] (ii)On 17 October 2024, the Minister for Immigration and Multicultural Affairs exercised his personal intervention power under s 195A of the Act to grant the Applicant a Bridging E (Subclass 050) visa (‘BVE’).[13] (iii)On 18 November 2024, the Assistant Minister for Citizenship and Multicultural Affairs granted the Applicant a further BVE.[14] (iv)On 19 December 2024, the Applicant was granted a BVR by the Assistant Minister.[15] This requires the Applicant to abide by conditions such as telephone reporting and conduct requirements, rather than more invasive measures such as a curfew or wearing a remote monitoring device.(e)Mr White informed the Tribunal that the Applicant had received the December 2024 BVR in person, during which he confirmed that his contact details were unchanged from those previously advised to the Tribunal and Respondent. The Tribunal made a further (unsuccessful) attempt to contact the Applicant on 21 January 2025. The Applicant failed to appear at the resumed hearing on 22 January 2025.[12] Exhibit R2, 85-96.[13] Ibid 97-99.[14] Ibid 100-102.[15] Ibid 327-337.

Ratio Decidendi

Legal Principle Established

Under cl 8.1.1(1) of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:i.violent and/or sexual crimes;ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;(f)the cumulative effect of repeated offending;(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;(h)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.Tribunal consideration: The nature and seriousness of the conduct