HYNDMAN and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 2256

HYNDMAN and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2256 (27 October 2025)

Applicant:Rebecca Sharne HYNDMAN

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/4530

Tribunal:Deputy President K Millar  

Place:Adelaide

Date:27 October 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides the cancellation of Ms Hyndman’s visa is revoked. 

Statement made on 27 October 2025 at 1:16pm

CATCHWORDS

MIGRATION – visas – cancellation of visa on character grounds where substantial criminal record – request for revocation of cancellation decision under s 501(1) of the Migration Act 1958 (Cth) (‘the Act’)– consideration of Ministerial Direction No. 110 – consideration of ss 501(3A), 501(6) and 501(7) of the Act – Legal consequence of cancellation – decision under review is set aside.

LEGISLATION

Migration Act 1958 (Cth)

CASES

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 252.

Minister for Home Affairs v HSKJ [2018] FCAFC 217.

Minister for Immigration, Citizenship and Multicultural Affairs v HRSN [2023] FCAFC 68.

Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2024] FCA 1273.

Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.

Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 117.

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.

Plaintiff S22 – 2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36.

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)

Statement of Reasons

  1. Ms Hyndman is a citizen of New Zealand who came to Australia when she was approximately six years old.  She has a lengthy criminal history involving stealing and fraud.  On 15 October 2024 she was sentenced to a number of stealing offences as well as receiving tainted property and fraud, and sentenced to various concurrent terms with the longest being for a period of imprisonment of 15 months.

  2. As she had been sentenced to a term of imprisonment of more than 12 months, her visa was cancelled by operation of the Migration Act 1958 (‘the Act’).  Where a person’s visa is cancelled because they have been sentenced to a term of imprisonment of more than 12 months and are serving their sentence, the person can seek revocation of this cancellation.

  3. Ms Hyndman sought revocation of the cancellation of her visa.  For the cancellation of her visa to be revoked, Ms Hyndman must show either that she meets the character test, or that there is another reason the original decision should be revoked.  On 4 August 2025, a delegate of the Minister for Immigration and Citizenship decided not to revoke the cancellation of her visa.

  4. Ms Hyndman has applied for review of the decision not to revoke the cancellation of her visa. She does not dispute that she does not…

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HYNDMAN and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2256
Case
[2025] ARTA 2256
Decision Date

CaseChat Overview and Summary

In the matter of HYNDMAN and Minister for Immigration and Citizenship, the applicant, Ms Hyndman, sought a revocation of her visa cancellation under s 501CA of the Migration Act 1958 (Cth). The primary legal issues before the court were whether the visa cancellation should be revoked under the statutory framework, and if so, whether the decision to revoke was justified under Ministerial Direction No. 110. The court was required to consider the primary and other considerations outlined in the Direction, as well as the risk of reoffending and evidence of rehabilitation.

The court considered Ms Hyndman’s substantial criminal record, consisting of 40 counts of stealing, 30 counts of fraud, and various drug-related and other offences. It was noted that Ms Hyndman’s criminal activities were largely driven by her heroin addiction and the need to support her family. The court also considered the risk assessment by Dr Hatzipetrou, who found Ms Hyndman’s risk of reoffending to be low to moderate, taking into account her current abstinence from drugs and her plans for rehabilitation. Furthermore, the court examined the primary considerations set out in the Direction, such as the protection of the Australian community, the strength of Ms Hyndman’s ties to Australia, and the best interests of her minor children.

The court concluded that despite Ms Hyndman’s criminal history, the primary considerations, particularly her ties to Australia and the best interests of her children, outweighed the risk to the Australian community. Additionally, the court found that Ms Hyndman’s current efforts towards rehabilitation, including her attendance at Narcotics Anonymous and plans for residential rehabilitation, provided a basis for the revocation of the visa cancellation decision. The decision to set aside the visa cancellation was made in light of these considerations, reflecting the balance between the need to protect the Australian community and the personal circumstances of Ms Hyndman.

The final orders of the court were that the decision to cancel Ms Hyndman’s visa under s 501CA of the Migration Act be revoked, and that her visa be reinstated.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, the cancellation of her visa should be revoked.BACKGROUND Ms Hyndman has two older brothers and her mother in Australia. Her father died in January 2024. She has six children, all of whom are Aboriginal and Torres Strait Islander children. Ms Hyndman has struggled with a heroin addiction since she was young. Following a period in rehabilitation arranged by her parents, she qualified as a hairdresser and worked in hairdressing. She met her long time partner and her heroin use increased. Ms Hyndman’s eldest son is 27 years old, and has a child who is 6 weeks old. Her remaining five children are from a long-term relationship with a Nunuckle man. During the relationship they lived with her partner’s mother, and Ms Hyndman is close to his mother. Ms Hyndman experienced family violence in this relationship which has now ended. She has two adult daughters, as well as twin daughters and a son from this relationship, with the youngest three children being minors. Ms Hyndman’s adult daughters each have a child. Her eldest daughter has a child who is two years old, and her other adult daughter has a child who is four weeks old. Ms Hyndman’s twin daughters are 14 years old and her mother, Mrs Maureen Hyndman, is their guardian until they turn 18 years of age. Her youngest child is seven years old and is in foster care. His foster carers also currently care for Ms Hyndman’s two youngest grandchildren. LEGISLATIVE FRAMEWORK Under s 501(3A) of the Act, the Minister must cancel a non-citizen’s visa if (among other things) the person does not pass the character test because they have a substantial criminal record as defined by s 501(6)(a), and the person is serving a full-time sentence of imprisonment for an offence against the Commonwealth, a State or Territory. The character test is set out at s 501(6) of the Act and includes at s 501(6)(a) that a person does not pass the character test if they have a substantial criminal record as defined in s 501(7) of the Act. A person has a substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act). A person who has a visa cancelled under s 501(3A) may seek revocation of that decision in accordance with s 501CA of the Act. As soon as practicable after a visa is cancelled under s 501(3A) of the Act, the person must be sent a notice including relevant particulars and invited to make representations about revocation of the decision to cancel their visa. Under s 501CA(4) of the Act, the Minister may revoke the original decision to cancel if the person makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked. DOES THE APPLICANT MEET THE CHARACTER TEST? Ms Hyndman was convicted of stealing after previous conviction (two counts) in the Magistrates Court of Queensland at Beenleigh, for which she was sentenced to a term of imprisonment of 15 months for each offence to be served concurrently.

Evidence

Evidence Before The Court

This likelihood is to be assessed taking into account information and evidence of the risk of reoffending and evidence of rehabilitation achieved by the time of the decision (cl 8.1.2(2) of the Direction)Information and evidence on the risk of the Applicant engaging in further criminal or serious conduct Ms Hyndman was assessed by Dr Luke Hatzipetrou who is a forensic psychologist. Dr Hatzipetrou considered Ms Hyndman had a history of chronic polysubstance dependency disorder and prolonged exposure to domestic violence. It is reported Ms Hyndman suffered physical assaults coinciding with her partner’s withdrawal from illicit drugs or his demands for her to source drugs. Dr Hatzipetrou assessed Ms Hyndman’s risk of reoffending using the Level of Service Inventory – revised (LSI- R) which resulted in a low / moderate risk, and Dr Hatzipetrou has also undertaken a framework of Risk, Needs and Responsivity which also returned a low to moderate risk. On being advised that Ms Hyndman had acknowledged using heroin once in the past two years, Dr Hatzipetrou said this would make her risk go further toward the moderate range. Dr Hatzipetrou reports Ms Hyndman has symptoms of PTSD and explained that a diagnosis of PTSD would require more than the two sessions he had conducted. This is because a factor in this diagnosis is the persistence of symptoms over time and collateral information supporting the self-report of symptoms. An explanation provided for Ms Hyndman’s offending was that she was threatened by her previous partner and was required by him to obtain money for heroin. Her mother gave evidence that she observed injuries consistent with family violence such as Ms Hyndman having a black eye and broken teeth, and the children told her about the behaviour at home including that Ms Hyndman had to sleep at the end of the bed. I accept threat of violence and actual violence from her partner was a cause of her offending. However, the criminal offending and her heroin use continued after the breakdown of this relationship, and she explains this as being continued due to her drug use and lifestyle. Ms Hyndman’s offending is clearly linked to her drug use and the need to support her family. In the past it has also been driven by the need to appease her partner by obtaining drugs. The end of that relationship and her plan to move away from her previous environment is positive, and early signs are promising on her abstinence from drugs. Overall, her risk of engaging in further criminal conduct is low to moderate. Rehabilitation Ms Hyndman has been generally free of drug use for the last two years, admitting to using heroin on one occasion. She plans to remain drug free and is on an opiate replacement program. The Respondent points to her previous involvement in an opiate replacement program and subsequent relapse into drug use and further offending. Much of the rehabilitation Ms Hyndman has planned lies in the future, with attendance at narcotics anonymous in the same location as her mother and enquiries made about residential rehabilitation at Odyssey House.

Decision

Reasons for decision

The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and I must comply with the Direction.Principles to guide decision making Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:(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 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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[1][1] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).

Ratio Decidendi

Legal Principle Established

The Direction also sets out matters to be considered in making a decision. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.(2)The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.(3)One or more primary considerations may outweigh other primary considerations.[2][2] Ibid cl 7.THE PRIMARY CONSIDERATIONS The Direction contains five primary considerations, which are:(1) The protection of the Australian community from criminal or other serious conduct;(2) Whether the conduct engaged in constituted family violence;(3) The strength, nature and duration of ties to Australia;(4) The best interests of minor children in Australia;(5) The expectations of the Australian community.[3][3] The Direction, cl 8. The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests. The primary and other considerations have been considered in turn. THE PROTECTION OF THE AUSTRALIAN COMMUNITY The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individual or the Australian community.[4] [4] Ibid cl 8.1(1). Decision-makers should also consider the nature and seriousness of the conduct to date and the risk to the community if the Applicant commits further offences or engages in other serious conduct (clause 8.1(2) of the Direction).Nature of the offending In the period 2000 – 2024, Ms Hyndman has been convicted of 40 counts of stealing and 30 counts of fraud. She has convictions for possession of drugs and some offences relating to breaching conditions of probation and bail and failing to appear. She has been convicted on one occasion of possessing explosives. Ms Hyndman was frank when discussing her offending history, acknowledging she committed all the offences for which she was convicted. She explains that the theft offences relate to the purchase of drugs or food and clothing for herself and her children or her partner and his family. For example, she described stealing perfume from a chemist and stealing tools from a shop to swap for drugs. The possession of ammunition she explained as having a bullet in her handbag that she did not realise was live, and had intended to make a necklace from the bullet. She did not realise possessing this item was an offence.