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

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).
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.
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
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).
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…

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.

Continue reading Kahui (Migration)

Details

AGLC: Kahui (Migration) [2025] ARTA 2127
Case: [2025] ARTA 2127
Decision Date: 2 July 2025

CaseChat Overview and Summary

The matter before the Tribunal was an application to review a decision to cancel the Subclass 444 (Special Category) visa of the applicant, Kahui. The decision to cancel was predicated on the risk to the health or safety of an individual, stemming from the applicant's history of charges as a minor, and the issuance of a temporary Protection Order. The Tribunal was tasked with determining whether the criteria for visa cancellation were met, and if so, whether the exercise of discretion warranted upholding or varying the decision.

The primary legal issue was whether the ground for cancelling the visa under section 501CO of the Migration Act 1958 (Cth) was satisfied. Specifically, the Tribunal had to assess if the applicant's past charges and the temporary Protection Order indicated a risk to the health or safety of an individual. Another key issue was the applicant's religious commitment and the cessation of their relationship, which the Tribunal considered relevant to the exercise of discretion.

In its decision, the Tribunal determined that the ground for cancelling the visa did not exist. The applicant had no convictions recorded and the charges were historical, occurring during their minority. Furthermore, the temporary Protection Order did not result in any convictions and the applicant's religious faith and commitment were deemed significant factors. The Tribunal found that the power to cancel the visa did not arise. Additionally, the cessation of the relationship did not impact the applicant's eligibility for the visa. Consequently, the Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel.

The final orders of the Tribunal were that the decision under review be set aside and replaced with a decision not to cancel the applicant's Subclass 444 (Special Category) visa. The Tribunal did not consider it necessary to exercise its discretion in light of its findings on the absence of a valid ground for visa cancellation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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

Ratio Decidendi

Legal Principle Established

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