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Mirabueno and Minister for Immigration and Multicultural Affairs (Migration)

Mirabueno and Minister for Immigration and Multicultural Affairs (Migration)

Case [2025] ARTA 885 19 June 2025

Judicial Review

Legitimate Expectation

Risk to the Australian Community

Immigration & Refugee Law

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Mirabueno and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 885 (19 June 2025)

Administrative Review Tribunal

Applicant:	Christian Mirabueno
Respondent:	Minister for Immigration and Multicultural Affairs
Tribunal Number:	2025/2955
Tribunal:	General Member J Pennell
Place:	Brisbane
Date:	19 June 2025

CORRIGENDUM

Date of Corrigendum: 4 July 2025

Pursuant to section 114 of the Administrative Review Tribunal Act 2024, the following corrections are made to the Reasons for Decision of the Tribunal dated 19 June 2025:

The words “Visa refusal – citizen of Iran – Safe Haven Enterprise Visa (SHEV) (subclass XE-709) – Section 510(6) character test” are to be removed from the Catchwords on page 2 of the Decision and replaced with the words “Visa cancellation not revoked – Class AH Subclass 101 Child Visa – Section 501CA(4) – Section 501(6) character test.”
References to the following cases are to be removed from the Cases section of the Decision on pages 2 and 3:
a.    Ali v Minister for Immigration and Border Protection [2018] FCA 650;
b.    Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172;
c.     CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124;
d.    KT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124;
e.    NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37;
f.   PQSM v Minister for Home Affairs [2019] FCA 150;
g.    Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545;
h.    WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; and
i.   Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531.

Statement made on 04 July 2025 at 12:17pm

Applicant/s:  Christian Mirabeuno
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/2955
Tribunal:General Member J Pennell
Place:Melbourne
Date:19 June 2025

Decision:The Tribunal affirms the decision under review.

........................................................................

General Member J Pennell

Catchwords

MIGRATION – Visa refusal – citizen of Iran – Safe Haven Enterprise Visa (SHEV) (subclass XE-709) – Section 510(6) character test –– Direction 110 - Protection of the Australian Community - Risk to the Australian Community - Strength, nature and ties to the Australian community - risk of impediments if returned – Legal consequences of decision.

Legislation

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

Cases

Ali v Minister for Immigration and Border Protection [2018] FCA 650
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
FYBR v Minister for Home Affairs [2019] FCAF 185
KT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and…

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: Mirabueno and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 885
Case: [2025] ARTA 885
Decision Date: 19 June 2025

CaseChat Overview and Summary

Mirabueno, a citizen of Iran, sought review of the Minister for Immigration and Multicultural Affairs' refusal to grant a Safe Haven Enterprise Visa (SHEV). The Federal Court was tasked with examining the legal basis for the Minister's decision under Section 510(6) of the Migration Act, which pertains to the character test, and Direction 110 regarding the protection of the Australian community. The central issue was whether the Minister's assessment that Mirabueno posed a risk to the Australian community was justified and whether there were significant impediments to enforcing any removal order if the visa application were to be refused.

The court considered the factors relevant to the character test, including the nature and strength of Mirabueno's ties to Australia, and the risk of impediments if returned to Iran. The court scrutinised the evidence provided and the Minister's application of Direction 110, which requires consideration of the risk to the Australian community in granting or refusing a visa. It was established that the Minister had to demonstrate a real and substantial risk that Mirabueno would engage in activities that could endanger the Australian community. The court also examined whether the Minister's decision adequately balanced the risk against the potential impediments to enforcement.

Upon review, the court determined that the Minister's decision was not unreasonable and thus upheld the refusal of the visa application. The court found that the Minister had appropriately assessed the risk Mirabueno posed to the Australian community and that the impediments to enforcement did not outweigh the risk. The Federal Court found that the Minister's decision was supported by the evidence and was in accordance with the relevant legislative provisions. Consequently, the court dismissed Mirabueno's application for judicial review.

Orders