Martin and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 1272

Martin and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1272 (1 August 2025)

Applicant:David Ngatokotoru Martin

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/3609

Tribunal:General Member R. West

Place:Melbourne

Date:1 August 2025

Decision:Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision of the delegate of the Respondent of 13 May 2025 not to revoke the cancellation of the Applicant’s Class TY (subclass 444) Special Category (Temporary) visa.

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

General Member R. West

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – applicant does not pass the character test – conviction for murder - whether discretion to revoke mandatory cancellation should be exercised – Direction 110 – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed  – decision affirmed

Legislation

Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Returning Offenders (Management and Information) Act 2015 (New Zealand)

Cases
BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730
CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
PQSM and Minister for Home Affairs (Migration) [2019] AATA 603
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
SZSS and Minister for Home Affairs (Migration) [2018] AATA 4079
ZTGP and Minister for Home Affairs (Migration) [2018] AATA 3518
R v Way [2004] NSWCCA 131

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2

Secondary Materials

Direction No. 110 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

Statement of Reasons

  1. This matter concerns an application for review of the decision of a delegate of the Respondent not to revoke the cancellation of the Applicant’s Class TY (subclass 444) Special Category (Temporary) visa (‘the Visa’) under section 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).

    BACKGROUND

  2. The Applicant is a citizen of New Zealand. He first arrived in Australia in March 1988 at the age of eight[1].

    [1] G10, 91.

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Details
AGLC
Martin and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1272
Case
[2025] ARTA 1272
Decision Date

CaseChat Overview and Summary

In the case of Martin and Minister for Immigration and Citizenship, the Applicant, who has been convicted of murder, sought review of a decision by a delegate of the Minister for Immigration and Citizenship not to revoke the mandatory cancellation of his visa. The matter was heard by the Administrative Appeals Tribunal and the Applicant, who was self-represented, argued that the mandatory cancellation of his visa should be revoked. The Tribunal was required to determine whether there was another reason why the mandatory cancellation of the Applicant's visa should be revoked, other than the Applicant passing the character test, as defined in section 501 of the Act. This required the Tribunal to consider the primary and other considerations set out in Direction 110.

The Tribunal found that the Applicant's criminal history was extensive and serious, and that his conduct was highly reprehensible. The Tribunal also found that the Applicant had failed to demonstrate that he had reformed and was unlikely to reoffend. The Tribunal considered the primary considerations set out in Direction 110 and found that the primary consideration of the protection of the Australian community was of significant importance, and that the other primary considerations, including the strength, nature and duration of the Applicant's ties to Australia, and the best interests of his minor children, were not sufficient to outweigh the need to protect the Australian community from the Applicant's criminal conduct. The Tribunal also considered the other considerations set out in Direction 110 and found that they did not provide sufficient reason to revoke the mandatory cancellation of the Applicant's visa.

The Tribunal affirmed the decision not to revoke the mandatory cancellation of the Applicant's visa. The Tribunal found that the Applicant's criminal history and conduct demonstrated a significant risk to the Australian community, and that the other considerations set out in Direction 110 did not provide sufficient reason to revoke the mandatory cancellation of the Applicant's visa. The Tribunal also found that the expectations of the Australian community, the legal consequences of the decision, and the extent of the impediments if the Applicant were removed from Australia, supported the decision not to revoke the mandatory cancellation of the Applicant's visa.

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

On 13 May 2025 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa (‘Reviewable Decision’)[4] and notified the Applicant of the decision on 14 May 2025[5].[4] G2, 16. [5] G2, 14-15. On 16 May 2025, the Applicant applied to the Tribunal for review of the Reviewable Decision (‘Application’)[6].[6] G1, 1-13.HEARING The Tribunal conducted a hearing of the Application on 23 July 2025 by video-conference. The Applicant was self-represented. The Respondent was represented by Ms Claire Campbell, a solicitor. In conducting the review, the Tribunal had regard to: (a)the documents produced to the Tribunal by the Respondent pursuant to section 501G of the Act, numbered G1 to G12 and paginated from pages 1 to 124 (‘G Documents’),(b)documents produced under summons sequentially numbered TB1 to TB3 and paginated from pages 1 to 449 (‘TB Documents’);(c)a Statement of Facts, Issues, and Contentions produced by the Respondent (‘RSFIC’);(d)a Statement of Facts, Issues, and Contentions produced by the Applicant (‘ASFIC’);(e)letters of support tendered by the Applicant from:i.Joshua Boyd (‘Exhibit A1’);ii.Lisa Mackett (‘Exhibit A2’); iii.Malisa Martin (‘Exhibit A3’); and(f)the oral evidence of the Applicant.LEGISLATIVE FRAMEWORK Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:(a) the Applicant passes the character test (as defined by section 501); or(b) there is another reason why the cancellation should be revoked. Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a ‘substantial criminal record’, which is defined in section 501(7)(c) to include having been ‘sentenced to a term of imprisonment of 12 months or more’. On 12 October 2011, the Applicant was convicted in the Supreme Court of NSW of Murder-SI, for which he was sentenced to a term of imprisonment of 20 years. As a result, the Applicant has a ‘substantial criminal record’ as defined in section 501(7)(c). He, therefore, fails the character test under section 501(6)(a). Accordingly, the sole issue before the Tribunal is whether, under section 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s Visa should be revoked. That reason:... must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[7][7] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [64] per Colvin J.DIRECTION 110 On 7 June 2024, the Minister issued Direction No. 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’) to commence operation from 21 June 2024. Direction 110 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s Visa should be revoked.

Ratio Decidendi

Legal Principle Established

Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations and specifically provides that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.PRIMARY CONSIDERATIONSProtection of the Australian Community Paragraph 8.1(2) of Part 2 of Direction 110 requires decision-makers to give consideration to:a) 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 DateNature of the Conduct A complete statement of the Applicant’s criminal record as reported by the Australian Criminal Intelligence Commission on 18 May 2020 was included in the G Documents.[9] [9] G3, 37-40. The Applicant has an extensive criminal history as an adult beginning in September 1995, including multiple convictions for break and enter in June 2002 for which he was sentenced to 2 years in prison and in August 2003 for which he was sentenced to 6 months in prison. The Applicant’s most serious offending occurred in October 2007, for which he was convicted on 12 October 2011 of:a.Murder – SI (20 years imprisonment, minimum parole period of 15 years)b.Reckless wounding – T1 (2 years imprisonment, minimum parole period of 18 months); and c.Common assault – T2 (6 months imprisonment). The circumstances resulting in the Applicant’s convictions on 12 October 2011 were set out in the sentencing remarks of Justice Kirby of the NSW Supreme Court as follows:In October 2007, David Martin and Lisa Mackett were living together in a rented house in Bateau Bay. They owned a red Ford Telstar motor vehicle. On Saturday 20 October 2007 at 5.00pm or thereabouts, they drove to the Bateau Bay Hotel, entering a large car park attached to the hotel via the Lumby Street gates. They parked their vehicle close to the hotel.David Martin and Lisa Mackett then spent the evening in the beer garden of the hotel. They met with friends and were described as being in good spirits. During the course of the evening, and especially towards the end of the evening, there were fights inside and outside the hotel. An experienced hotel manager described the hotel as having an "odd feeling", which he ascribed to testosterone. There were significantly more males than females. Neither Luke Hankey nor David Martin was involved in the fighting inside the hotel before the hotel closed at midnight.Patrons began leaving the hotel shortly before midnight. As recorded on CCTV footage, a brawl erupted approximately five minutes before midnight. At 12.12am, David Martin and Lisa Mackett passed through the exit doors into the car park. Luke Hankey and his group had gone through the same doors approximately three minutes before them.David Martin said that he and Lisa Mackett had intended to walk home. Their house was only a short distance from the hotel. However, as they entered the car park there was yelling and shouting. There were groups of people. They became concerned that their car might be damaged, were it left over night. They therefore determined that they would drive home. Lisa Mackett occupied the driver's seat, with David Martin as the passenger. The car was driven through the car park towards the Lumby Street gates. People, including Luke Hankey and his group, were walking towards the same gates. The gates provided a shared exit. Members of the group became aware of a car behind them, which they described as being driven erratically.Ultimately, the path of the car was blocked by pedestrians. Luke Hankey was directly in front of the vehicle when it stopped. He apparently turned his back on the vehicle, putting plant material down his trousers and, as described by his sister, "wiggled his bum".The horn of the car did not work. The female driver, Lisa Mackett, was heard to yell out, perhaps with expletives: "Get out of the way; you'll get yourself killed". The path of the car, however, remained blocked. Members of the crowd yelled at the occupants of the car. In these circumstances, David Martin and Lisa Mackett both got out of the vehicle. David Martin picked up a blunt implement as he did so. The implement had a steel shaft at least 10 centimetres in length. The wounds later inflicted by this implement had a star shaped pattern, suggesting that it was probably a Phillips Head screwdriver. David Martin passed behind the vehicle, moving swiftly. He approached a group at the side of the vehicle, which included Beau Janson.Using the steel implement, he struck Beau Janson twice on the left side of his neck. He inflicted wounds which penetrated the various layers of the skin. Fortunately, however, the wounds were relatively superficial. They did not require suturing. Beau Janson has been left with no residual disability (count 1).The attack was unprovoked. Beau Janson had neither spoken to David Martin nor made any gestures towards him before the attack. After he was struck, he stumbled as he tried to get away. David Martin then moved towards the front of the vehicle and confronted Luke Hankey. With a thrusting motion, requiring moderate to severe force, he struck Luke Hankey twice in the chest. The blunt implement, on one of these occasions, penetrated eight centimetres through to the heart and aorta. The other wound was relatively superficial. Again the attack was unprovoked. Within a short time, Luke Hankey collapsed. Death followed rapidly (count 2).David Martin then confronted a third man, Danny Andrews, a member of the group. Danny Andrews backed away, holding both palms up, saying words to the effect: "Go away, I don't want anything to do with you". David Martin then returned to the driver's seat of the vehicle.As this was happening, Lisa Mackett assaulted Luke Hankey's sister, Eva Hankey, and later Kellie Marshall. She then returned to the vehicle, occupying the passenger seat.The whole episode took seconds rather than minutes. The vehicle then left at some speed, driven by David Martin. As it drove away, it was attacked by the crowd.The vehicle, at the time of purchase, had a crack to the windscreen on the driver's side. As it sped off, someone in the crowd threw a blunt metal pole or similar object at the vehicle. It hit the already weakened windscreen, causing a number of additional cracks. The windscreen, however, did not shatter. The damage occasioned to the vehicle was an important aspect of the Crown case, providing a link between the vehicle of David Martin and Lisa Mackett and the incident in the car park.Having left the hotel, David Martin drove the short distance to Rays Road, a connecting road that ultimately led to his home. The assault, the subject of count 6, occurred in Rays Road a minute or so after they had left the car park. David Withers, the victim of the assault, had spent the evening at the Bateau Bay Hotel. He left the hotel at about midnight. He was significantly affected by alcohol. He and a friend were walking home. Their journey took them along Rays Road. Once in Rays Road, they saw a parked vehicle belonging to a friend. As they crossed the road, approaching their friend's vehicle, the red vehicle of David Martin turned the corner. As it did so, David Withers and his friend were standing in the middle of the road. David Martin slammed on the brakes. He managed to stop the vehicle about two metres from them. As David Withers moved to the side of the road, he wave a wave to the driver of the vehicle, as if to say he was sorry. It was apparent to David Martin that they were very much affected by alcohol.David Martin got out of his vehicle. He yelled abuse at David Withers and his companion. He then pushed David Withers in the chest and punched him in the right eye. David Withers was thrown back onto the bonnet of his friend's car. However, he was not seriously injured.Lisa Mackett, meanwhile, slid across to the driver's seat of the vehicle. As she did so, she yelled out: "We need to get out of here, we need to get the fuck out of here, we've got to go". David Martin got back into the vehicle, occupying the passenger seat. The vehicle then drove off[10].[10] G5, 49-52.