Hunt and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 2185

Hunt and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2185 (21 October 2025)
Applicant:William Roger Hunt
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4442
Tribunal:General Member K Thornton
Place:Melbourne
Date: 21/10/2025
Decision:The Tribunal affirms the decision under review.

......................[SGD]........................
General Member K Thornton
Catchwords
MIGRATION – Non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) – mandatory cancellation of Applicant’s Class TY (subclass 444) Special Category visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – family violence offending – formal warning previously given – escalating offending – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143
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, dated 7 June 2024
Statement of Reasons

The Applicant is a 43-year-old citizen of New Zealand. He seeks review of a decision made by the delegate of the Respondent not to revoke the mandatory cancellation of his Class TY (subclass 444) Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
For the following reasons, the Tribunal affirms the decision under review.
RELEVANT LEGISLATION
Section 501(3A) of the Act provides that 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:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is 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 a Territory.
Section 501(6)(a) provides that, for the purposes of this section, a person does not pass the character test if the person has a ‘substantial criminal record’ (as defined by s 501(7)). Section 501(7)(c) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person. Section 501CA(4) provides that 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…

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: Hunt and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2185
Case: [2025] ARTA 2185
Decision Date: 21 October 2025

CaseChat Overview and Summary

The Tribunal was asked to review the decision of the Minister for Immigration and Citizenship not to revoke the mandatory cancellation of the Applicant’s Special Category visa under s 501CA(4) of the Migration Act 1958 (Cth). The Applicant, who has been in Australia since he was a child, was sentenced to 28 months imprisonment for family violence offending, leading to the cancellation of his visa. The Applicant sought revocation of this decision, arguing that there were other reasons to reconsider the cancellation. The key legal issue was whether the Tribunal should find another reason to revoke the cancellation decision, given the Applicant’s criminal history and the statutory obligations under s 501CA(4).

The Tribunal considered the statutory framework and the obligations under Direction 110, which guides the assessment of non-citizens' character and the protection of the Australian community. The Tribunal assessed the Applicant’s criminal history, his participation in a domestic violence course while incarcerated, and his lack of rehabilitation or treatment programs. The Tribunal concluded that the Applicant did not meet the character test required under s 501CA(4)(b)(i) of the Act. The Tribunal also examined whether there were other reasons to revoke the cancellation decision, considering the primary consideration of protecting the Australian community. Given the nature and seriousness of the Applicant’s criminal conduct, particularly the family violence offence, the Tribunal found no compelling reasons to revoke the cancellation decision. The safety and interests of the Australian community remained the paramount concern.

The Tribunal upheld the Minister's decision not to revoke the cancellation of the Applicant’s visa. The Tribunal's decision was based on the Applicant's criminal history, the statutory obligations, and the principle that entering or remaining in Australia is a privilege contingent on being law-abiding and not causing harm. The Tribunal found no other reason to revoke the cancellation decision, affirming the Minister’s decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Paragraph 9(1) contains the other considerations. That paragraph provides that the other considerations must also be taken into account, where relevant, in accordance with their provisions. The other considerations include (but are not limited to):a) legal consequences of the decision;b) extent of impediments if removed;c) impact on Australian business interests.APPLICANT’S PERSONAL BACKGROUNDArrival into Australia and visa history The Applicant was born in New Zealand. He first arrived in Australia in 1987 as a 6-year-old, before departing Australia in 1988.[1] The Applicant relocated to Australia permanently on 10 May 1989 as a 7-year-old and has remained in Australia since.[2][1] Exhibit R1, 106.[2] Ibid. On 1 September 1994, the Applicant was granted a Class TY (subclass 444) Special Category (Temporary) visa.[3] He has held that visa since that time.[3] Ibid 107. On 28 March 2024, the Applicant was sentenced at the Toronto Local Court in New South Wales for family violence offending. He was sentenced to an aggregate term of 29 months imprisonment with a non-parole period of 16 months.[4] A Community Correction Order for three years was also imposed. The Applicant appealed the severity of this sentence.[4] Ibid 52. On 29 July 2024, the District Court of New South Wales allowed the appeal and re-sentenced the Applicant to an aggregate term of 28 months imprisonment, with a non-parole period of 14 months. The Applicant’s Community Correction Order was also reduced from three years to two years.[5][5] Ibid 51. On 27 August 2024, the Applicant’s visa was mandatorily cancelled under s 501(3A) on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Act because he had been sentenced to a term of imprisonment of 12 months or more.[6][6] Ibid 107-113. On 20 September 2024, the Applicant made representations through his authorised recipient (Ms TR, the Applicant’s cousin) seeking revocation of the cancellation decision.[7][7] Ibid 85-6. On 29 July 2025, a delegate of the Respondent decided under s 501CA(4) of the Act not to revoke the original cancellation decision (‘the non-revocation decision’).[8][8] Ibid 35. On 30 July 2025, the Applicant was notified of the non-revocation decision via his authorised recipient.[9] [9] Ibid 23. On 30 July 2025, the Applicant lodged an application for review of the non-revocation decision with the Tribunal.[10] The application stated that Ms TR was the Applicant’s authorised representative.[11][10] Ibid 8-22.[11] Ibid 14.TRIBUNAL HEARING On 9 October 2025, a Tribunal hearing was held by video at the Tribunal’s Melbourne Registry. The Applicant appeared by video from immigration detention and represented himself during the proceedings. The Respondent also appeared by video and was represented by Ms Alexandra O’Grady from MinterEllison. At the outset of proceedings, the Tribunal explained its role and purpose and explained the hearing process. The Tribunal received into evidence a Hearing Book as Exhibit R1 totalling 225 pages of material.

Evidence

Evidence Before The Court

The Tribunal received into evidence a Hearing Book which contained the documents:(a)G-documents totalling 138 pages;(b)Letter from Dr Hiren Mandaliya dated 27 August 2025, filed on behalf of the Applicant regarding his mother’s cancer diagnosis;(c)Respondent’s SOFIC dated 3 September 2025;(d)Respondent’s Supplementary documents comprising:(i)Materials produced under summons by Toronto Local Court and Cessnock Local Court; and (ii)National Plan to End Violence Against Women and Children 2022-2032;(e)Respondent’s Further Supplementary documents comprising:(i)Materials produced under summons by New South Wales Police;(ii)Materials produced under summons by New South Wales Department of Communities and Justice; and (iii)Further materials produced under summons by Cessnock Local Court.Oral evidence As indicated above, the oral evidence given by the Applicant was brief. The Applicant told the Tribunal that he has three younger brothers and one younger sister. He said he arrived in Australia in approximately 1987 or 1988 and has not left Australia since. He told the Tribunal that he was working in civil construction before he was arrested. He also worked as a concreter for a few years. He said he would still be working in civil construction if it wasn’t for his arrest. He told the Tribunal he didn’t need any formal qualifications or certifications for that role. The Applicant told the Tribunal he has two children; one who is approximately 20 years old and living with his elderly mother, and another who is approximately seven or eight years old. He said his eldest daughter works as a cleaner and helps his mother. He said that his mother was sick, but he has been told the cancer is now in remission which means his eldest daughter can now re-enter the workforce. He said his youngest child has a separate mother and is ‘part of the reason’ why he is incarcerated. He said he doesn’t know ‘what is going on’ with his youngest child at the moment. He told the Tribunal he only has a ‘few friends’ including his best friend, Mr Orchard, who wrote a character reference on the Applicant’s behalf. He also told the Tribunal he was involved with the Soul Café. He explained to the Tribunal that the Soul Café is an organisation that assists homeless people in the Newcastle area. He said he used to attend church at the Soul Hub every weekend, but when he resumed living with his former partner, it was difficult to maintain his attendance at church. He said he was involved with the Soul Café for approximately ten years. He also said he was addicted to drugs and alcohol at the time and was using a ‘lot of substances.’ He also said he experienced periods of homelessness and was living out of his car. The Tribunal asked the Applicant whether he had completed any courses or undertaken any rehabilitation whilst incarcerated. He told the Tribunal he had completed a domestic violence course in prison. He said he has not received any rehabilitation, counselling or attended any treatment programs in immigration detention.

Decision

Reasons for decision

The Tribunal therefore finds that the Applicant does not pass the character test. Accordingly, he cannot rely on s 501CA(4)(b)(i) as a basis to revoke the cancellation decision.Is there another reason why the cancellation decision should be revoked? The Tribunal now needs to consider whether there is another reason why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act. In order to determine this question, the Tribunal is required to undertake an assessment of the representations put forward by the Applicant.[13] The Tribunal is required to read, identify, understand and evaluate the representations and must bring its mind to bear upon the facts stated in them or the arguments and opinions put forward and appreciate who is making them.[14] The weight to be afforded to the representations is a matter for the decision-maker.[15][13] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 589 [22].[14] Ibid [24].[15] Ibid. The Tribunal must apply the terms of Direction 110 in determining whether there is another reason why the cancellation decision should be revoked under s 501CA(4)(b)(ii).[16]PRIMARY CONSIDERATIONS[16] Direction 110, 5.1 (4).Primary consideration one: Protection of the Australian community Paragraph 8.1 of Direction 110 states:(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. 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. The Tribunal has had regard to the matters set out at paragraph 8.1(1) of the Direction. The Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal has had 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. The Tribunal has considered the matters raised at paragraph 8.1(2) of Direction 110 below.The nature and seriousness of the conduct Paragraph 8.1.1(1) of Direction 110 sets out the factors that decision-makers must have regard to when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date.

Ratio Decidendi

Legal Principle Established

The Tribunal must apply the terms of Direction 110 in determining whether there is another reason why the cancellation decision should be revoked under s 501CA(4)(b)(ii).[16]PRIMARY CONSIDERATIONS[16] Direction 110, 5.1 (4).Primary consideration one: Protection of the Australian community Paragraph 8.1 of Direction 110 states:(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. 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. The Tribunal has had regard to the matters set out at paragraph 8.1(1) of the Direction. The Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal has had 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. The Tribunal has considered the matters raised at paragraph 8.1(2) of Direction 110 below.The nature and seriousness of the conduct Paragraph 8.1.1(1) of Direction 110 sets out the factors that decision-makers must have regard to when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Paragraph 8.1.1(1)(a) provides that 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. They are: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. Paragraph 8.1.1(1)(b) identifies a non-exhaustive list of crimes or conduct that are considered serious by the Australian Government and the Australian community. They include crimes against vulnerable members of the community.[17][17] Ibid 8.1.1(1)(b)(ii).The Applicant’s offending that led to the mandatory cancellation of his visa