Johnstone and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 1851

Johnstone and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1851 (22 September 2025)

Applicant:Timothy Johnstone

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/4335

Tribunal:Senior Member N Burns  

Place:Melbourne 

Date:22 September 2025     

Decision:The Tribunal affirms the decision under review.

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

Senior Member N Burns

Catchwords

MIGRATION – review of a decision not to revoke mandatory cancellation of visa under section 501CA(4) of Migration Act 1958 – character test – Direction 110 – protection of the Australian community – mental health issues – decision under review affirmed

Legislation

Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)

Cases

AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] 272 FCR 454
Glenn Taylor v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 2015 (16 February 2024)
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Secondary Materials

Direction no 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA (dated 7 June 2024)

Statement of Reasons

  1. On 9 July 2025, the applicant lodged a review with the Administrative Review Tribunal (the Tribunal) of a decision made by a delegate of the Minister on 30 June 2025 not to revoke the mandatory cancellation of the applicant’s Class BF transitional (permanent) visa under s 501CA(4) of the Migration Act1958 (Cth) (the Act).

  2. The issues for the Tribunal to determine are whether the applicant passes the character test, and, if not, whether there is another reason the cancellation of his visa should be revoked.

    BACKGROUND

  3. The applicant is a 57-year-old man from the United Kingdom (UK).  He came to Australia on 5 July 1976 (at eight years of age) with his parents and brother and has resided here since.  His other brother was born in Australia.  On 1 September 1994 he was granted the transitional permanent visa by operation of law.

  4. In the form[1] setting out reasons for revocation and his personal circumstances form[2] which the applicant provided to the Department he states his mother and father’s citizenship is Australian and English and states he believes he was a dual Australian and English citizenship holder from eight years of age. The Department undertook an ‘Australian Citizenship Status Assessment’ and concluded on 30 May 2024 the applicant was not an Australian citizen by conferral or by descent.[3]

    [1] ‘Request for revocation of mandatory visa cancellation…

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AGLC
Johnstone and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1851
Case
[2025] ARTA 1851
Decision Date

CaseChat Overview and Summary

The case of Johnstone against the Minister for Immigration and Citizenship pertains to a review of a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Migration Act 1958. The applicant, a 57-year-old UK national who has resided in Australia since the age of eight, had his visa cancelled due to a substantial criminal record and imprisonment for offences against Australian law. The central legal issues for the court to determine were whether the applicant passed the character test and, if not, whether there was another reason to revoke the visa cancellation.

The court had to weigh various factors, including the applicant's long-term residency in Australia, his substantial criminal record, and the nature and seriousness of his past offences. The court considered the primary consideration of protecting the Australian community, as outlined in Direction 110, which emphasizes the importance of non-citizens obeying Australian laws and the community's expectation that they should not remain in the country if they pose a risk due to serious conduct or offences. The applicant's criminal history, which began at a young age and included drug-related offences, shoplifting, trespass, and sexual offences, was heavily scrutinised. Despite the applicant's arguments about underlying personal issues such as drug use and mental health problems, the court found that his criminal conduct was serious and warranted the mandatory cancellation of his visa.

The court concluded that the applicant did not meet the character test due to his extensive criminal history and the nature of his offences. The court found that the applicant's conduct posed a significant risk to the Australian community, and thus, the visa cancellation should stand. The court also noted that the applicant's long-term residency in Australia, while a mitigating factor, was not sufficient to outweigh the seriousness of his criminal conduct. The decision to uphold the visa cancellation was affirmed, and no grounds for revocation were found.

Orders

Orders of the court

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Background

Background to the litigation

The issues for the Tribunal to determine are whether the applicant passes the character test, and, if not, whether there is another reason the cancellation of his visa should be revoked. BACKGROUND The applicant is a 57-year-old man from the United Kingdom (UK). He came to Australia on 5 July 1976 (at eight years of age) with his parents and brother and has resided here since. His other brother was born in Australia. On 1 September 1994 he was granted the transitional permanent visa by operation of law. In the form[1] setting out reasons for revocation and his personal circumstances form[2] which the applicant provided to the Department he states his mother and father’s citizenship is Australian and English and states he believes he was a dual Australian and English citizenship holder from eight years of age. The Department undertook an ‘Australian Citizenship Status Assessment’ and concluded on 30 May 2024 the applicant was not an Australian citizen by conferral or by descent.[3] [1] ‘Request for revocation of mandatory visa cancellation under s501(3A)’ form (HB pp 101 – 105)[2] HB pp 106 - 120[3] HB pp 125 - 132 According to information contained in his National Criminal History check (released on 6 September 2024)[4] on 13 March 2023 the applicant was convicted in the Newcastle Local Court of New South Wales (NSW) of:[4] HB pp 203 - 206·wilful and obscene exposure in/near public place/school·goods in personal custody suspected being stolen (not m/v)·shoplifting·larceny value<=$2000·sexually touch another person without consent (two counts)·common assault·possess prohibited drug·stalk/intimidate intend fear physical etc harm (personal) (two counts) and ·carry out sexual act with another without consent. The applicant was sentenced to an aggregate term of imprisonment of three years. In relation to the offenses of sexually touch another person without consent (two counts), wilful and obscene exposure in/near public place/school, common assault, stalk/intimidate intend fear physical harm etc (personal) (two counts) and carry out sexual act with another without consent his sentence was reduced to 30 months on appeal by the District Court of NSW, Newcastle, commencing on 15 August 2022 and expiring on 14 February 2025. The appeal judge (Judge McGrath SC) set a non-parole period (NPP) of 15 months commencing on 15 August 2022 and expiring on 14 November 2023.[5][5] HB pp 83 - 89 Judge McGrath SC did not impose a penalty for the offenses of shoplifting, possess prohibited drug, larceny value<=$2000 and goods in personal custody suspected being stolen (not m/v). On 27 June 2024 the applicant’s visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Act on the basis that he had ‘a substantial criminal record’ within the meaning of s 501(6)(a) of the Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution (Metropolitan Special Programs Centre (MSPC), NSW), for an offence against a law of the Commonwealth, a state or a territory. He was notified of the visa cancellation and invited to make representations about revocation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant has been in Australia since 1976 (from at eight years of age) and has never left. The Tribunal accepts he knows no other home and that this is a significant period of time: almost 50 years. This consideration weighs moderately in favour of revocation.Best interests of minor children in Australia affected by the decision Paragraph 8.4 of the Direction requires the Tribunal to determine whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. In her SOFIC the representative submits the applicant has no minor biological children in his life and this consideration should be afforded neutral weight. The Respondent in his SOFIC notes there is currently no information regarding any child in Australia being affected by a non-revocation decision and the consideration should be given neutral weight. The Tribunal accepts the applicant has only one child, who is an adult and whom he has limited contact. He is unaware of any grandchildren: even if they existed the Tribunal finds he has no contact or relationship with them. Although there is reference to some nieces and nephews in Australia no further information or details about them has been provided including about their age or relationship with the applicant (if any). Accordingly, the Tribunal gives this primary consideration neutral weight. Expectations of the Australian Community Paragraph 8.5(1) of the Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia. Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence. Paragraph 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The expectations of the Australian community as a whole are to be considered. The Direction directs that decision makers should proceed on the basis of the Government’s views (as articulated above), without independently assessing the community’s expectations in the particular case: paragraph 8.5(4) of the Direction. It is not for the Tribunal itself to determine such expectations.[35] [35] FYBR v Minister for Home Affairs[2019] FCAFC 185 at [66]- [67], [91], [101] and [104].

Ratio Decidendi

Legal Principle Established

In weighing up these considerations in the applicant’s case, the Tribunal has taken into account the documentary material lodged by the parties, and the oral evidence of the applicant and the other witnesses, and the representative and Respondent’s written and oral submissions, where relevant. PRIMARY CONSIDERATIONSThe 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.[15] [15] Paragraph 8.1(1). The Tribunal is directed to 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.[16][16] Paragraph 8.1.(1). Paragraph 8.1(2) of the Direction requires decision-makers to:a)consider 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.Nature and seriousness of the applicant’s conduct to date This primary consideration involves taking into account the nature and seriousness of the applicant’s past offending. It is recorded[17] that his criminal offending began in 1991 when aged 23: which, as noted by the representative, was 15 years after he migrated to Australia. The offences primarily related to drug possession, shoplifting and trespass type offences, for which he was mainly issued a fine or bond. As also noted by the representative in their SOFIC, on several occasions the Court considered rehabilitation and supervision more appropriate than a custodial sentence. There was recognition the applicant’s offending was linked to underlying personal issues that could be addressed through non-custodial measures, the representative submits further. [17] Nationally Coordinated Criminal History check (HB pp 203 – 206); and Annexure A- Applicant’s offending, Respondent’s SOFIC (HB pp 19 – 20). The applicant has not disputed his long history of criminal offending. At hearing he said he started taking drugs around 16 in the context his parent’s separation, which likely contributed to his mental health issues. He referred to his first ‘breakdown’ occurring at around age 17 when undertaking training for volunteer military work. The Tribunal accepts his pre 2022 offending took place in the context of drug use and mental health issues, reflected by the type of offences as pointed out by his representative. There was a previous charge for a sexual offence (commit act of indecency with person under 16 years) however according to the Sentencing Assessment report (dated 17 February 2023)[18], this was dealt with under s 32 (of the Mental Health Act (NSW)).[18] HB pp 302 - 306