Kahui (Migration)

[2025] ARTA 2127

KAHUI (MIGRATION) [2025] ARTA 2127 (2 JULY 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Tama Cruise Kahui

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2518578

Tribunal:Kira Raif

Place:Sydney

Date:2 July 2025

Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 02 July 2025 at 1:25pm

CATCHWORDS

MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to the health or safety of an individual – applicant charged with several offences as a minor – temporary Protection Order issued – no convictions recorded – religious faith and commitment – power to cancel the visa does not arise – relationship ceased – decision under review set aside    

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994
Youth Justice Act 1992 (QLD)

CASES

Djokovic v MICMSMA (2022) 289 FCR 21
Gong v MIBP [2016] FCCA 561
Thornton v MICMSMA [2022] FCAFC 23     

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of New Zealand, born in April 1999. He was granted the Special Category visa in 2002. In November 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC). The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e). The Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).

5. A visa may be cancelled under s 116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: i) the health, safety or good order of the Australian community or a segment of the Australian community; or ii) the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561 at [41].

6. The words ‘may’ or ‘might’ do not contain different levels of possibility; they relate to different contexts: ‘may’ if the visa holder is in Australia; ‘might’ if he or she were to come into Australia in the future: Djokovic v MICMSMA (2022) 289 FCR 21 at [37]. The same can be said for the words ‘is’ and ‘would’.

7. If a visa may be cancelled under s 116(1)(e), prescribed circumstances may also exist in which a visa is not to, or must, be cancelled: s 116(2) and (3). There are currently no prescribed circumstances that apply. If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.

   Does the ground for cancellation exist?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in September 2019  the applicant had been charged with the following offences:

   -Assault occasioning bodily harm (DV) – multiple counts

   -Choking suffocation strangulation (DV)

9. Information from the Qld police indicates that a temporary Protection Order was issued to the applicant for the protection of his partner. The delegate refers to the information in the Police Facts Sheet which alleges that the applicant had an argument with his partner Ms R and had struck, stomped on and choked the victim. He used a wooden bed slat to hit and threaten the victim on two occasions and threatened to kill the victim with a pair of scissors while she attempted to leave the residence. It is stated that the victim sustained a number of injuries as a result of the applicant’s behaviour.

10. In his declaration in response to the NOICC the applicant stated that the wished to contest unfair and exaggerated charges and, by mutual agreement, downgrade certain stipulations which would be of benefit to both parties. In his submission to the Tribunal the applicant states that he had denied the original charges and was never convicted of these charges as the DPP decided not to continue with the proceedings relating to the original charges. The applicant states that he does not have any offences awaiting processing and continues to be a productive and beneficial member of the Australian community. The applicant states that since he was never convicted of original charges, there are no grounds  for cancelling his visa. The applicant subsequently provided to the Tribunal a copy of his AFP certificate which shows the most recent conviction being recorded in January 2021.

11. The Tribunal accepts the applicant’s evidence that he was not convicted of the original charges that formed the basis of the delegate’s decision. However, as the Tribunal ‘stands in the shoes’ of the original decision-maker, the Tribunal is able to have regard to all of the circumstances and is not limited to the factual circumstances that were before the delegate. That is, the Tribunal is able to have regard to the entirety of the applicant’s criminal history.

12. The applicant provided to the Tribunal a Queensland report which indicates that he had been dealt with in the Ipswich Children’s court in relation to a number of offences as a minor (between 2015 and 2017) for which no convictions were recorded. The Tribunal acknowledges the principles enunciated in Thornton v MICMSMA [2022] FCAFC 23 at [36]-[37] where the court determined that a recording of guilt for an applicant as a minor under that provision of the Youth Justice Act is not a relevant consideration and offending that falls within the provisions of the Youth Justice Act is not to be considered as a ‘conviction’ for the purposes of the Migration Act. However, the issue for the purpose of s. 116 is not whether the applicant has been ‘convicted’ of offences but whether his presence in Australia poses a risk to others. In determining that issue, the Tribunal considers it is not limited to convictions that were recorded or convictions that relate to the applicant as an adult. The Tribunal must be able to have regard to the entirety of the applicant’s conduct in determining whether his presence is or may be a risk to others.

13. Similarly, the applicant’s AFP certificate indicates that there are a number of offences between 2015 and 2020 for which no convictions were recorded but for the purpose of establishing whether the applicant is or may be a risk, the Tribunal considers that it is permissible to have regard to that conduct.

14. The applicant’s AFP certificate indicates that in September 2020 he was convicted for failure to appear in accordance with undertaking and was fined $700. In January 2021 the applicant was convicted for contravention of a DVO and was fined $300. These offences occurred in addition to multiple other offences for which no convictions were recorded. These include entering premises with intent to commit an indictable offence, possession of drugs, possession of property suspected of having been used in connection with commission of an offence. In relation to these offences the applicant received fines and community service time.

15. Having regard to the above evidence, the Tribunal finds that the applicant has committed multiple offences over a number of years and that would suggest that his presence in this country may be a risk to others. However, the Tribunal has also formed the view that the offending was not very serious, noting that the sentences imposed are primarily fines. In the Tribunal’s view, the nature of the penalties impose reflects less than very serious type of offending involved.

16. It is also notable that the most recent conviction was recorded in January 2021, some four and a half years ago. That is not an insignificant period of time.

17. The applicant submits that there is no risk of reoffending. He states that the original charges were withdrawn and that his previous criminal history was not relevant to the cancellation decision and ‘largely’ occurred whilst he was a minor. The applicant states that there was only one offence committed whilst he was an adult and it is mitigated by the influence of his peers with whom he has since cut ties. The applicant refers to the deterrence, such as his ties in Australia, his religious faith and commitment to religious community, his commitment to maintaining employment in Australia and rehabilitation through the completion of various courses.

18. The applicant provided in his submission to the Tribunal evidence of his employment, evidence of having completed courses, family photographs, evidence of family and community involvement and a copy of his Licence to Perform High Risk work. The applicant states that his last offending occurred in 2018 (which seems to be inconsistent with the information in the AFP certificate although that relates to sentencing rather than the occurrence of the conduct) and since that time, the applicant submits, he has been a valued member of the community. He states that there does not exist an unacceptable risk to the community if he was to remain in Australia.

19. The applicant provided to the Tribunal a report by Dr Palk dated 17 June 2025. The report outlines the applicant’s personal circumstances, his past criminal history and his present circumstances. Dr Palk states that the applicant is remorseful and ashamed for his past offending and has displayed insight into the impact of his offending. He has avoided breaking laws since 2020 and is now a practising Muslim. Dr Palk states that the risk of reoffending could be ‘maintained at an acceptable level’ if the applicant refrains from substance misuse and maintains his practices as a Muslim. Dr Palk refers to the hardship that the cancellation of the visa may cause to the applicant.

20. In considering whether the presence of the applicant in Australia is or may be a risk to others,  the Tribunal has decided to give weight to the following factors.

21. Firstly, the time that has passed since the most recent offending. As noted above, over four years passed since the most recent conviction and there is no evidence that the applicant had been convicted of other offending since that time. Notably, the charged were withdrawn in relation to the more recent alleged offending that formed the basis of the primary decision.

22. Secondly, there is some evidence before the Tribunal pointing to the applicant’s rehabilitation. This evidence suggests that the applicant’s circumstances now are different to the circumstances that existed at the time of his offending. The applicant claims he no longer consumes drugs and alcohol, he has dis-associated himself from bad influences and that his religious observance and family links will act as a significant deterrent for future reoffending.

23. The Tribunal is mindful that the determination by the delegate was based on the charges which were subsequently withdrawn, so the applicant’s guilt has not been determined. The applicant’s earlier conduct did not lead to any assessment concerning the risk and did not result in a determination that the applicant’s presence in Australia is or may be a risk to others. The Tribunal is also mindful that, should the applicant commit an offence in the future, another assessment may be made as to whether his presence in Australia poses a risk to others or whether he passes the character test.

24. In all the circumstances, the Tribunal has determined that there is insufficient evidence for a positive satisfaction that at present, the applicant’s presence in Australia is or may be, or would or might be, a risk to safety or good order of the Australian community or a segment of the community or individual/s. There is nothing to suggest that the applicant’s presence in Australia is or may be a risk to the health of others.

25. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

26. The applicant made submissions to the Tribunal concerning the exercise of discretion. Having found that the ground for cancellation does not exist, there is no need for the Tribunal to consider discretionary factors.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

    Date(s) of hearing  n/a

    Representative for the Applicant:       Tanguy Mutamba Mwilambwe