IIGA and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1918

IIGA and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1918 (29 July 2025)
Applicant:James IIGA
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3452

Tribunal:  General Member T Eteuati
Place:Brisbane
Date of decision:                 29 July 2025
Reasons for decision         29 September 2025
Decision:The reviewable decision is affirmed.

Statement made on 29 September 2025 at 11:59am

Catchwords
MIGRATION – non-revocation of mandatory cancellation of a visa – failure to pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – Tribunal finding there is not another reason to revoke the mandatory cancellation decision – Reviewable decision affirmed
Legislation
Administrative Review Tribunal 2024 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons

This is an application by James Iiga (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister” or “the Respondent’) on 5 May 2025 to refuse to revoke, under section 501CA(4) of the Migration Act 1958(Cth) (“the Act”), the cancellation of the Applicant’s Class TY Subclass 444 Special Category visa.
The Applicant, a New Zealand citizen, began residing in Australia as a 19-year-old in 1998. He has resided in Australia for about 27 years since. When the Applicant last entered Australia on 18 July 1998, he was granted a Class TY Subclass 444. That is the visa that was mandatorily cancelled on 23 May 2024.
The Applicant’s was first found guilty of an offence in 2000. He was then convicted or found guilty of offences in 2004, 2006, 2011, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2023 and 2024. Those offences included assault, domestic violence offences, offences of dishonesty, drug related offences, contravene direction offences and assault or obstruct police officer.
On 3 May 2024, the Applicant was convicted of 15 comes of stealing, 7 counts of selling after previous conviction and breach of bail condition for which he was sentenced to 12 months imprisonment on each count.
On 23 May 2024, while the Applicant was still in prison, a delegate of the Minister cancelled the Applicant’s visa pursuant to section 501(3A) of the Act.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section…

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: IIGA and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1918
Case: [2025] ARTA 1918
Decision Date: 29 July 2025

CaseChat Overview and Summary

In the matter of IIGA and Minister for Immigration and Citizenship (Migration), the Applicant, IIGA, challenged the decision of the Minister's delegate to not revoke the mandatory cancellation of their visa under section 501CA of the Migration Act 1958 (Cth). The Applicant's visa had been subject to mandatory cancellation due to failing the character test, specifically by being sentenced to a term of imprisonment of 12 months or more. The central issue before the Tribunal was whether there were sufficient grounds, beyond the failure to pass the character test, to revoke the mandatory cancellation of the Applicant's visa.

The Tribunal thoroughly examined the evidence, including the criminal history report and the submissions from both parties. The Applicant did not contest the conviction that led to their failure to pass the character test. Instead, the focus of the hearing was on whether there were other reasons, as outlined in Ministerial Direction No. 110, that could justify revoking the mandatory cancellation decision. The Tribunal applied the principles set out in the Direction, particularly the primary consideration of the protection of the Australian community, and weighed this against other considerations such as the nature and seriousness of the Applicant's conduct, the risk of reoffending, and the impact on victims and their families.

After considering all the evidence and applying the relevant principles, the Tribunal concluded that there were no other reasons to revoke the mandatory cancellation of the Applicant's visa. The seriousness of the Applicant's criminal conduct, which involved a significant term of imprisonment, outweighed any other considerations that could have justified a revocation of the mandatory cancellation. Therefore, the Tribunal affirmed the Minister's delegate's decision not to revoke the visa cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked, the Tribunal must find in the Applicant’s favour. The appropriate decision in those circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.EVIDENCE The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” or “G1”), the documents tendered into evidence by the Applicant and the documents tendered into evidence by the Respondent. The evidence contained in these documents is discussed throughout this decision. The Tribunal has also carefully considered all of the evidence given at the hearing of the matter on 15 and 16 July 2025. The Tribunal has also reviewed the audio recording of the hearing.DOES THE APPLICANT PASS THE CHARACTER TEST Section 501(6) relevantly provides:(6) For the purposes of this section, a person does not pass the character test if:(a) the person has a substantial criminal record (as defined by subsection (7)); or... Section 501(7) relevantly provides:(7) For the purposes of the character test, a person has a substantial criminal record if:...(c) the person has been sentenced to a term of imprisonment of 12 months or more; or... The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more. Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.Offending history An Australian Criminal Intelligence Commission criminal history report for the Applicant dated 18 June 2024 shows the following convictions for the Applicant: As the Applicant has been sentenced to a term of imprisonment of at least 12 months on 3 May 2024, the Applicant does not pass the character test. Is there another reason to revoke the mandatory cancellation of the Applicant’s visa? In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa pursuant to section 501CA(4) of the Act, the Tribunal must comply with a direction made under section 499(1) of the Act: section 499(2A) of the Act. The relevant direction is Direction 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110 or the Direction). The Direction contains 8 principles that inform a decision maker in taking into account the considerations in paragraphs 8 and 9 of the Direction. 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 noncitizen 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 noncitizen does not pose a measurable risk of causing physical harm to the Australian community.

Decision

Reasons for decision

The Tribunal has decided to affirm the Minister’s delegate’s decision not to revoke the cancellation of the Applicant’s visa. The Tribunal considers that this is the correct decision in this case.DECISION The Tribunal affirms the reviewable decision.

Ratio Decidendi

Legal Principle Established

Paragraph 7 of the Direction provides: (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 at 8.1 below (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.PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY Paragraph 8.1(1) of the direction provides:When considering the 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. Paragraph 8.1(2) of the Direction provides: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 conductThe nature and seriousness of the Applicant’s conduct to date When considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction provides that decision-makers must have regard to the following:(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 re-offended 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 offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.The nature and seriousness of the Applicant’s conduct