JMJN and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1787

JMJN and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1787 (12 September 2025)
Applicant/s:  JMJN
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4078

Tribunal:Senior Member T Tavoularis
Place:Brisbane
Date:12 September 2025
Decision:Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 11 June 2025 to not revoke the mandatory cancellation of the Applicant’s Class BT Subclass 802 Child visa.

........................SGD........................
Senior Member T Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BT Subclass 802 Child visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – primary and other considerations – protection of the Australian community from criminal or other serious conduct – whether conduct engaged in constituted family violence – the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – further other consideration involving mental health stigma – impact on Australian business interests – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison v Minister for Immigration and Citizenship (2009) 106 ALD 666 [63]
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Direction No 110 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Migration Regulations 1994 (Cth)
Department of Foreign Affairs and Trade – Country Information Report - PNG
Statement of Reasons
INTRODUCTION

The Applicant compiled a series of convictions in Australia since arriving here as a 14-year-old in February 2013. Consequently, his Class BT Subclass 802 Child visa[1] was mandatorily cancelled on 21 August 2024 pursuant to s 501(3A) of the Migration Act 1958 (Cth).[2] In a decision made on 11 June 2025[3], pursuant to s 501CA(4) of the Act, a delegate of the Respondent refused to revoke that mandatory cancellation decision. By application made to this Tribunal on 16 June 2025, the Applicant seeks the setting aside of the decision under review.
[1] Hereinafter referred to as “the visa”.
[2] Hereinafter referred to as “the Act”.
[3] Hereinafter referred to as “the decision under review”.
The hearing of the instant application proceeded before me via Microsoft Teams on 20, 21 and 22 August, 2025. In addition to the evidence of the Applicant, the hearing received oral evidence from five lay witnesses and one expert witness. The five lay witnesses comprised the Applicant’s…

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: JMJN and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1787
Case: [2025] ARTA 1787
Decision Date: 12 September 2025

CaseChat Overview and Summary

The matter before the court involved the Applicant, JMJN, who sought to challenge the non-revocation of the mandatory cancellation of his Class BT Subclass 802 Child visa by the Minister for Immigration and Citizenship. The Applicant, who does not meet the character test, argued for a revocation of the cancellation decision on the grounds that there were other reasons to do so. The legal issues before the court were to determine whether there were other reasons to revoke the mandatory cancellation of the Applicant’s visa, considering the Ministerial Direction No. 110 and other relevant considerations.

The court found that the Applicant did not meet the character test and that there were no other reasons to revoke the mandatory cancellation of his visa. In its reasoning, the court examined the primary and other considerations outlined in the Direction. The court found that the Applicant’s conduct, which included violent offences and other serious criminal activities, was very serious, and that he posed a real risk of re-offending. The Applicant’s mental health conditions, substance abuse issues, and history of non-compliance with treatment were also considered. Despite these factors, the court found that the Applicant’s conduct and the risk he posed to the Australian community outweighed the other considerations.

The court affirmed the decision made by the Minister not to revoke the mandatory cancellation of the Applicant’s visa. The court concluded that the totality of the Applicant’s conduct, his history of frequent and serious offending, and the cumulative effects of his actions on the community, justified the maintenance of the visa cancellation. The court's decision was based on a holistic application of the considerations set out in the Direction, which did not support a revocation of the cancellation decision.

The final orders of the court affirmed the decision of the Minister not to revoke the mandatory cancellation of the Applicant's visa, and the Applicant's application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

During the course of closing submissions, the Respondent submitted the Applicant continues to represent a very real risk of re-offending. I think the evidence affords both plausibility and conviction to that contention. The evidentiary thesis grounding the submission is postulated in these terms: (1) the Applicant’s schizo-affective disorder; (2) that the Applicant was non-compliant with medication for that disorder which compounded its impact on him; (3) the Applicant’s history of alcohol abuse; (4) the Applicant’s illicit substance abuse; (5) the Applicant’s addiction to gambling; (6) the Applicant’s incapacity to deal with stressful situations affecting his life; (7) the Applicant’s incapacity to manage feelings of anger and frustration; and (8) the Applicant’s post-traumatic stress disorder.[20] [20] Hereinafter referred to as “PTSD”. The general tenor of the Applicant’s evidence. The Applicant’s oral evidence contained repeated references to his historically poor behavioural responses towards situations of frustration and seeming impasse. His first reaction towards resolution of those challenges was to become angry and to physically manifest that anger by punching and/or throwing inanimate objects. He told the hearing this tendency towards physical expression of his anger became significantly worse when under the influence of alcohol. It was while in such a severely unregulated state that the Applicant so very seriously offended against his former domestic partner and her father culminating in the aggregate sentence of 20 months’ imprisonment he received in July 2024.The Applicant’s mental health diagnoses. In 2019, the Applicant suffered a psychotic episode that saw him admitted to the Meade Centre Armadale Hospital in Perth. The diagnosis made at that time was subsequently confirmed at the same treatment facility in June 2021 by Dr John Shin (Psychiatry Service Registrar) and again in September 2021 by Dr Runy Ruth George (Psychiatric Service Registrar. In January of this year, Dr Edward Fearon (from the Telecare Specialist Clinic) noted the Applicant’s past psychiatric history comprising the abovementioned psychiatric episode in 2019 and resulting diagnosis of schizoaffective disorder. In a letter dated 24 October 2022, Dr Johannes Khor, Consultant Psychiatrist at the Meade Centre Armadale Hospital in Perth, diagnosed the Applicant with the following disorders: (1) schizophrenia; (2) substance use disorder; (3) alcohol misuse disorder; and (4) gambling disorder.[21] In May 2020, the Applicant was involuntarily admitted to the Armadale / Kelmscott District memorial Hospital in Perth and kept in a locked ward of that hospital’s mental health unit from 8 May 2020 to 13 May 2020. The principal diagnosis was “psychosis” resulting from the Applicant telling the treating team on admission that he was “…hearing multiple voices in his head fighting (strangers), not talking to him or about him…[the Applicant] described a vision in which he was at a table with Donald Trump and other celebrities and then “being taken” back to his country (Papua New Guinea[22]). Also stated “seeing all these conspiracies””.[23]

Decision

Reasons for decision

A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s visa.DECISION Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 11 June 2025 to not revoke the mandatory cancellation of the Applicant’s Class BT Subclass 802 Child visa.

Ratio Decidendi

Legal Principle Established

Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:a)legal consequences of the decision;b)extent of impediments if removed; andc)impact on Australian business interests.13.I move now to a consideration of each of those primary and other considerations as may be relevant to the instant facts. PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY14.In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:(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 conduct16.I will consider each in turn.The nature and seriousness of the Applicant’s conduct to date17.Prior to assessing the nature and seriousness of the Applicant’s conduct, it is prudent to have at least some measure of understanding of the totality of his unlawful conduct by sentencing courts. Taken in its totality, his offending history appears to disclose the commission of 26 offences dealt with at 10 separate episodes. However, this would be to mis-read the offending history. This is because the five abovementioned five offences dealt with by a NSW regional Local Court in July 2024 were initially taken on appeal to a NSW regional District Court in October 2024. 18.The criminal history notes that each of the appeals for these five convictions were “withdrawn”. The full notation next to each of the five convictions taken on appeal to a regional NSW District Court in October 2024 is cast in these terms: “APPEAL WITHRAWN – CONFIRMED IMPRISONMENT (AGGREGATE) 20 MONTHS…”.[8]Given these appeals did not proceed to finalization, I will not take those five entries into consideration for present purposes. In turn, this means the totality of the Applicant’s offending history comprises convictions for 21 offences imposed at nine separate sentencing episodes.[8] See R1, pp 38-39.19.The nature of the Applicant’s conduct can be readily found to be very serious. The offending which attracted the imposition of an aggregate term of 20 month was plainly a crime of violence[9] which also involved violent offending against his former fiancée.[10] The Direction mandates that this type of conduct is viewed very seriously by the Australian Government and its community. That is how this Tribunal will characterize the Applicant’s conduct.[9] Sub-paragraph 8.1.1(1)(a)(i).[10] Sub-paragraphs 8.1.1(1)(a)(ii) and (iii). 20.For the sake of completeness, but not in any way changing my finding about the very serious nature of the Applicant’s offending, I will note that early in the criminal history there is reference to the two convictions for Obstruct public officer and one conviction for Assault Public Officer. These convictions fall within the auspices of sub-paragraph 8.1.1(1)(b)(ii) of the Direction as crimes committed against government representatives or officials due to the position they hold or in the performance of their duties. The Direction mandates that such conduct is considered by the Australian Government and its community to be serious.21.The Applicant has convictions for 21 offences dealt with at nine separate sentencing episodes. He was first convicted in July 2019 and last convicted in July 2024. The commission of 21 offences across a roughly five year timeframe is frequent offending.[11] The conduct also betrays a convincing trend of increasing seriousness. That trend is demonstrated by a comparison between, on the one hand, the Applicant’s first three convictions for the offending particularised in the immediately preceding paragraph to, on the other hand, conduct convicted in July 2024 punished by an aggregate custodial term of 20 months.[12][11] Sub-paragraph 8.1.1(1)(e). [12] Sub-paragraph 8.1.1(1)(e).22.The Applicant’s conduct has manifested in a range of cumulative effects.[13] First, it has physically and emotionally traumatised its victims. The factual circumstances of the offending convicted in July 2024 cannot be read in ant other way. Second, it is demonstrative of a person yet to develop any modicum of respect for the laws and regulations governing the Australian community. This can be seen from his repeated convictions for breaching lawfully made written orders and/or oral directions compelling him to do or refrain from doing something.[13] Sub-paragraph 8.1.1(1)(f).23.Third, his convictions for driving while under the influence of alcohol and for driving while disqualified or suspended from doing so are indicative of a person who has little understanding of the laws and regulations governing the use of Australian carriageways. His drink-driving also had the very real potential for placing other road users at risk. Fourth, his convictions for destroying and damaging the property of others is demonstrative of a person who does not respect the rights of others to own, use and enjoy the property they have lawfully acquired. Fifth, the sheer nature and scope of the Applicant’s conduct has consumed more than its fair share of the Australian community’s law enforcement, judicial sentencing and public healthcare resources.Conclusion about the nature and seriousness of the Applicant’s conduct24.Four of the nine factors at paragraph 8.1.1(1) of the Direction are relevant to assessing the nature and seriousness of the Applicant’s conduct. To my mind, the application of the evidence to those relevant factors causes them to cumulatively speak towards a finding that the totality of the Applicant’s conduct has been very serious. I so find.The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct