Marino and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 613

Marino and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 613 (27 May 2025)
Applicant/s:  Jodene Marino
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/2863

Tribunal:Senior Member S Webb
Place:Sydney
Date:27 May 2025
Decision:The 20 March 2025 decision not to revoke the cancellation of Ms Marino’s visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

…………[SGD]………………………………..
Senior Member S Webb
Catchwords
MIGRATION – mandatory visa cancellation – criminal convictions – failure to pass character test – substantial criminal record – review of decision not to revoke visa cancellation – Ministerial Direction No. 110 – primary and other relevant considerations – protection of Australian community – seriousness of conduct – escalation – drug addiction – potential harms – rehabilitation and lapses in recovery – protective factors – medium risk of reoffending – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of non-revocation – extent of impediments if removed from Australia – balance of considerations – decision affirmed
Legislation
Migration Act 1958 (Cth), ss 198, 499, 500, 501, 501CA
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125
Bettencourt v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 172
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2021] FCA 1536
FYBR v Minister for Home Affairs [2019] FCAFC 185
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2018] FCAFC 116
Secondary Materials
Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons

Jodene Marino is a citizen of New Zealand who has been residing in Australia under a Special Category (Class TY) (subclass 444) visa (Visa). She was convicted of criminal offences and sentenced to a term of imprisonment which resulted in mandatory cancellation of her Visa under s 501(3A) of the Migration Act 1958 (Act).
Ms Marino made representations seeking revocation of the mandatory Visa cancellation decision. A delegate of the Minister decided not to revoke the decision to cancel her Visa. Ms Marino applied for review of this decision by the Tribunal.
The review is regulated by legislative procedures set out in s 500(6) to (6L) of the Act.
Facts
The following facts are established by the documentary and oral evidence before the Tribunal.
Ms Marino was 24 years old when she first travelled to Australia on 27 November 2007.[1] At that time the other members of Ms Marino’s immediate family, her parents and 8 siblings, resided in New Zealand. Subsequently, her parents and 5 of her siblings separately moved to Australia.
[1] Exhibit…

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: Marino and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 613
Case: [2025] ARTA 613
Decision Date: 27 May 2025

CaseChat Overview and Summary

The case of Marino and Minister for Immigration and Multicultural Affairs involves a review of the decision not to revoke the visa cancellation of Ms Marino, a non-citizen residing in Australia with a history of criminal conduct and drug addiction. The matter was brought before the Australian court for review of the decision made by the Minister for Immigration and Multicultural Affairs under Ministerial Direction No. 110. The court was tasked with determining whether there were other reasons to revoke the visa cancellation, considering various factors such as the protection of the Australian community, the nature and seriousness of Ms Marino’s conduct, and the potential impediments she might face if removed from Australia.

The primary legal issue the court had to decide was whether there were substantial reasons to revoke the visa cancellation, beyond the mandatory considerations outlined in the Ministerial Direction. This required balancing the seriousness of Ms Marino’s criminal conduct against other factors, including her drug addiction, her rehabilitation efforts, and the potential risks she might face if returned to her home country, New Zealand. The court also had to consider the legal consequences of not revoking the visa cancellation, such as the likelihood of Ms Marino being detained and deported, and the implications of such a decision on her mental health and safety.

In reaching its decision, the court thoroughly examined the evidence presented regarding Ms Marino’s criminal history, her drug addiction, and her efforts towards rehabilitation. It considered the potential risks and impediments she might face if removed from Australia, such as the lack of a supportive network and exposure to past traumatic experiences. The court also weighed the legal consequences of not revoking the visa cancellation, acknowledging the policy underlying the character provisions of the Act, which generally results in non-citizens being removed from Australia if their visa is cancelled. Ultimately, the court concluded that, while there were factors that weighed in favour of revoking the visa cancellation, the overall considerations did not sufficiently justify revocation. The court affirmed the Minister’s decision not to revoke the visa cancellation, noting that the protection of the Australian community and the seriousness of Ms Marino’s conduct were significant factors against revocation.

The final orders of the court affirmed the decision of the Minister for Immigration and Multicultural Affairs not to revoke the visa cancellation of Ms Marino. This decision was based on a comprehensive assessment of the various considerations outlined in the Ministerial Direction, including the protection of the Australian community, the nature and seriousness of Ms Marino’s conduct, and the potential impediments she might face if returned to New Zealand. The court found that, while there were mitigating factors, they did not outweigh the primary considerations that supported the original decision to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

The review is regulated by legislative procedures set out in s 500(6) to (6L) of the Act.Facts The following facts are established by the documentary and oral evidence before the Tribunal. Ms Marino was 24 years old when she first travelled to Australia on 27 November 2007.[1] At that time the other members of Ms Marino’s immediate family, her parents and 8 siblings, resided in New Zealand. Subsequently, her parents and 5 of her siblings separately moved to Australia. [1] Exhibit 1, 237. It is Ms Marino’s evidence, as a child, she spent time on a family farm and attended school until the age of 14. She experienced childhood trauma and commenced marijuana use at the age of 12. She was exposed to gangs. Subsequently, she obtained employment, including in a timber yard. She engaged in a relationship and a pattern of conduct from which she wanted to escape. She explained it was for this reason she relocated to Australia. Soon after arriving in Brisbane, Ms Marino moved to Blacktown in Sydney and then moved to the Northern Beaches area, where a cousin resided. She commenced an intimate relationship with Alfred Cortes and obtained stable employment. Unfortunately, Mr Cortes encountered serious health issues and, in or about 2015, the relationship with Ms Marino broke down. Ms Marino’s employment ended in redundancy. Ms Marino engaged in drug-related conduct and commenced using methylamphetamine (also described as ‘ICE’ or ‘Meth’). She became addicted to this drug and, by her own account, she became a heavy user, consuming more than 1 gram per day. It was in this context Ms Marino engaged in increasingly serious criminal conduct which led to her being sentenced to a 2-year term of imprisonment which commenced on 21 January 2023. Ms Marino has a lengthy record of offending conduct.[2] The first offence she committed in Australia was a driving offence in August 2009. She was fined $300 and disqualified from driving for 6 months. On 30 September 2015, her driver’s licence was suspended for non-payment of fines and she was fined $700 and disqualified from driving for 3-months. On 16 November 2015, Ms Marino was convicted of dishonestly obtain property by deception and driving offences for which she was fined and disqualified from driving to 2 years. [2] Ibid, G6-G7. In February, March, June and August 2016, Ms Marino was convicted of further driving offences. On 17 August 2016, Ms Marino was sentenced to a 9-month term of imprisonment, suspended under bond, in respect of driving offences. On 16 July 2018, Ms Marino was convicted of a string of offences and sentenced to a 12-month term of imprisonment and a 2-year bond. The offences included:(a)possession of a prohibited drug (2 counts);(b)break and enter house etc steal value <=$60,000;(c)dishonestly obtain property by deception offences (2 counts);(d)shoplifting;(e)goods in personal custody suspected of being stolen;(f)possess housebreaking implements;(g)receive property-theft; and(h)driving motor vehicle during disqualification period; and(i)breach of bail.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering these matters, the character concerns arising from Ms Marino’s serious conduct weigh against revoking the cancellation of her Visa.Legal consequences of the decision ‘Other considerations’ are generally given less weight than ‘primary considerations’. Ms Marino did not make submissions of any substance in respect of this consideration and preferred to leave it to the Tribunal. She did expressly confirm that no protection considerations or claims were raised or pressed. On this point, it remains open for Ms Marino to make a claim for protection if she chooses to do so. Should that occur, it can then be determined on relevant evidence at the time. Presently, there is no cause to consider the matter any further. The immediate legal consequence of a decision not to revoke the cancellation of Ms Marino’s Visa is that she will be held in immigration detention, pending removal from Australia under s 198 of the Act. Once removed from Australia, it is very unlikely she will be permitted to return. These are the legal consequences of the policy underlying the character provisions of the Act. They apply in all cases of this kind where the decision-maker is not satisfied of the matters set out in s 501CA(4)(b) of the Act. Ms Marino asserts the legal consequence of forcing her to return to New Zealand is likely to have an adverse impact on her as she is likely to be exposed to circumstances and nefarious influences which might place her safety and mental health at risk. On the relevant available evidence, it is not possible to assess the veracity of these assertions or the risk to Ms Marino’s safety which might arise from the legal consequences of not revoking the decision to cancel her Visa. Nevertheless, I accept the legal consequences of a decision not to revoke the cancellation of Ms Marino’s Visa weigh in favour of reinstating her Visa.Extend of impediments if removed This consideration is directed to the impediments a non-citizen would face should they be removed from Australia to their home country:(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: a) the non-citizen's age and health; b) whether there are substantial language or cultural barriers; and c) any social, medical and/or economic support available to them in that country. Ms Marino’s evidence and submissions in respect of this consideration turn on two key factors. The first is that she will lack a supportive family, social or community network and she will have no friends on whom to draw in times of need in New Zealand. The second is that returning to New Zealand might expose her to risks associated with drugs, gangs and the rekindling of traumatic past experiences and memories. These factors would be likely to impede her recovery from addiction and place her future stability and mental health at risk.

Ratio Decidendi

Legal Principle Established

In the Minister’s submission, on balance, the relevant considerations weigh against revoking cancellation of Ms Marino’s Visa and the Tribunal should be satisfied there is not another reason to do so.Consideration Under the Direction, as the objective n s 5.1(3) makes perfectly clear, when considering whether there is another reason to revoke mandatory cancellation of a non-citizen’s visa, the decision-maker must consider the specific circumstances of the case.Protection of the Australian community The principles set out in s 5.2(2) and (3) of the Direction state that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the community from harm resulting from criminal conduct or other serious conduct by non-citizens, and non-citizens who engage in criminal or other serious conduct should expect to be denied the privilege of remaining in Australia. Entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding and do not cause or threaten harm to individuals or the Australian community. These matters should be kept squarely in mind when considering protection of the Australian community. It is also necessary to consider the nature and seriousness of Ms Marino’s conduct to date under s 8.1.1 of the Direction and the risk of harm to the Australian community under s 8.1.2 should she engage in further serious conduct.Nature and seriousness of conduct The following matters are set out in s 8.1.1:8In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following: (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community: (i) violent and/or sexual crimes; (ii) crimes of a violent nature against women or children, regardless of the sentence imposed; (iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed; (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious: (i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; (ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; (iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c)); (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again,, or an offence against section 197A of the Act, which prohibits escape from immigration detention; (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes; (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness; (e)the cumulative effect of repeated offending; (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour). (h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.