Livingstone and Minister for Immigration and Multicultural Affairs (Migration)

Case [2025] ARTA 1213

Livingstone and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1213 (4 August 2025)

Applicant/s:  Benjamin Livingstone

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2025/3662

Tribunal:Senior Member D Thomae

Place:Brisbane 

Date:4 August 2025

Decision:Pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision under review made by the delegate of the Respondent dated 30 April 2025 to cancel the Applicant’s visa and substitutes that decision with a decision that the Tribunal does not exercise the discretion to cancel the Applicant’s visa conferred by s 501 of the Migration Act 1958 (Cth).

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Statement made on 04 August 2025 at 12:35pm

Catchwords

MIGRATION – Discretionary cancellation of a Class TY subclass 444 Special Category (Temporary) Visa – where Applicant does not pass the character test – whether there is another reason to set aside the decision to cancel the visa – consideration of Ministerial Direction No. 110 – where applicant arrived as child – decision under review set aside and substituted decision made not to cancel visa

Legislation

Migration Act 1958 (Cth)
Administrative Review Tribunal Act 2024 (Cth)

Cases

DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

FYBR v Minister for Home Affairs [2019] 272 FCR 454

GKYW v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1543

Heathcote and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 131
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR
Minister for Immigration, Citizenship, Migrant Services v Thornton (2023) 276 CLR 136
Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 791
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

Secondary Materials

Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Statement of Reasons

  1. The Applicant is a 35-year-old citizen of New Zealand who came to Australia on a Subclass 444 Special Category (Class TY) visa in April 1999 when he was eight years old (the visa). His visa was cancelled on 30 April 2025 due to his criminal offending in 2012. There was no contest between the parties that the Applicant has resided in Australia on a permanent basis since 27 April 1999. The Applicant confirmed as much in his evidence and in cross-examination.

  2. On 14 November 2024, a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent or the Minister) sent the Applicant a Notice of Intention to Cancel the visa pursuant to section 501(2) of the Migration Act 1958 (the Act). On 14 December 2024 the Applicant made written representations to the Respondent going to the issue of why the visa should…

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Details
AGLC
Livingstone and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1213
Case
[2025] ARTA 1213
Decision Date

CaseChat Overview and Summary

The applicant, who had arrived in Australia as a child, sought judicial review of the Minister for Immigration and Multicultural Affairs' decision to cancel his Class TY subclass 444 Special Category (Temporary) Visa. The Minister's decision was based on the applicant's failure to meet the character test under the Migration Act 1958 (Cth). The Administrative Appeals Tribunal was tasked with determining whether the Minister's decision was legally sound and whether there were any other reasons to set aside the cancellation decision.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa was justified under the Migration Act and whether there were any other reasons to set aside the cancellation decision. The Tribunal examined whether the applicant's substantial criminal record, which included a conviction for entering premises and committing an indictable offence and stealing, warranted the cancellation of his visa. Additionally, the Tribunal considered whether the Ministerial Direction No. 110 provided any grounds to set aside the Minister's decision.

The Tribunal found that the Minister's decision to cancel the applicant's visa was legally sound as it was based on the applicant's failure to meet the character test. However, the Tribunal also considered the other primary considerations outlined in Ministerial Direction No. 110, including the strength, nature, and duration of the applicant's ties to Australia. The Tribunal noted that the applicant had lived in Australia for the majority of his life, arriving at the age of eight, and had strong family ties in Australia. Given these factors, the Tribunal set aside the Minister's decision and made a substituted decision not to cancel the applicant's visa.

The Tribunal's decision was based on a comprehensive review of the evidence and the application of relevant legal principles. The Tribunal found that while the applicant's criminal record was a significant factor, the other primary considerations outlined in Ministerial Direction No. 110 warranted a substituted decision not to cancel the applicant's visa. The Tribunal's decision ensures that the applicant's rights under the Migration Act are protected and that the Minister's decision was subject to appropriate judicial scrutiny.

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 cancellation of the visa on 30 April 2025 was the exercise of a discretionary power by the Minister (the Reviewable Decision). Section 501(2) of the Migration Act 1958 (Cth) (the Act) relevantly provides that the Minister may cancel a visa that has been granted to a person if:· the Minister reasonably suspects that the person does not pass the character test; and· the person does not satisfy the Minister that person passes the character test. Under s 501(6)(a) of the Act, a person will not pass the character test if they have ‘a substantial criminal record’. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’[1]. [1] It is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant when determining the term of imprisonment - See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416. On 30 October 2012 the Applicant was convicted in the Magistrates Court of Queensland at Brisbane of ‘Enter premises and commit indictable offence’ and ‘Stealing’ for which he was sentenced to 12 months imprisonment (suspended). Based upon his criminal convictions and sentences, the delegate found that the Applicant failed the character test pursuant to s 501(6)(a) of the Act. The Delegate then determined to cancel the Applicant’s visa via an application of Ministerial Direction 110 (the Direction)[2]. [2] Direction No. 110 – Migration Act 1958 – direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA On 21 May 2025 the Applicant lodged an application in the Administrative Review Tribunal (the Tribunal) seeking review of the Reviewable Decision pursuant to s 500(1)(b) of the Act. The hearing of this application took place on 24 and 25 July 2025. The Applicant gave evidence in person. The Respondent required the following witnesses to be called for cross-examination:(a)Mr John Hepi Te Hiua, father of the Applicant; (b)Mrs Kelly Potter, mother of the Applicant; (c)Mr Te Akato Potter, brother of the Applicant;(d)Mr Ayden Kello, friend of the Applicant; and(e)Mr Tristan Williams, direct work supervisor of the Applicant. The Applicant was self-represented. The Minister was represented by Mr Nam, solicitor, Clayton Utz. The Tribunal had regard to:(a)the documents produced to the Tribunal by the Respondent pursuant to s 501G of the Act, numbered G1 to G5 and paginated from pages 1 to 198 (Exhibit R1);(b)a bundle of documents produced under summons, witness statements tendered by the Applicant, the Respondent’s Statement of Facts, Issues and Contention and Reply, described as the ‘Hearing Book’ and paginated from pages 1 to 103 (Exhibit R2);(c)the oral evidence of the Applicant; and(d)the oral evidence of the witnesses in paragraph 8 above.HAS THE APPLICANT PASSED THE CHARACTER TEST?

Ratio Decidendi

Legal Principle Established

Primary Consideration 1 weighs moderately against setting aside the cancellation of the Applicant’s visa. Primary Consideration 2: family violence The Direction defines ‘family violence’ to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful. The Direction provides that a member of a person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person. Paragraph 8.2(1) of the Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen. There is no evidence before the Tribunal that the Applicant has been convicted of an offence, found guilty of an offence, or had charges proven, that involve family violence. There is also no information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of family violence. This Primary Consideration is not relevant. Primary Consideration 3: strength nature and duration of ties to Australia Paragraph 8.3 of the Direction says I must consider any impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. I should also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to: (a)how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:oless weight should be given where the Applicant began offending soon after arriving in Australia; andomore weight should be given to time the Applicant has spent contributing positively to the Australian community;(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. The Applicant has lived the majority of his life in Australia, arriving at the age of eight with his immediate family, and never returning to New Zealand. The Applicant did not commence his offending soon after arriving in Australia. It was uncontroversial that the Applicant’s immediate family, his mother, father and eight brothers and sisters, all of whom live in Australia, and all of whom would be negatively impacted by his removal. The Applicant’s father, mother and brother gave evidence on their limited capacity for work and family reasons to travel to New Zealand to see the Applicant if he was removed. The Applicant provided details of the type of contact and connection he has with his immediate family and how largely he maintains that contact through electronic means. He accepted that he would be able to maintain contact if removed to New Zealand but not to have the in-person contact he has with the various members of his family, particularly those who reside in Brisbane.