Morgan and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1406

Morgan and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1406 (13 August 2025)
Applicant/s:  Brenton Morgan
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/3864

Tribunal:Deputy President P Britten-Jones
Place:Melbourne
Date:13 August 2025
Decision: The Tribunal sets aside the decision under review and in substitution decides to revoke the visa cancellation decision made on 27 August 2024.

....................[SGD]....................................................
Deputy President P Britten-Jones
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 (Cth) of the mandatory cancellation of Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – the seriousness of drug trafficking – applicant has lived in the Australian community for most of his life and from a very young age – the decision under review is set aside and substituted by a decision to revoke the cancellation of the visa
Legislation
Migration Act 1958 (Cth)
Cases
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Secondary Materials
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
Statement of Reasons

This is an application for review of a decision to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA
On 27 August 2024, the Applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.[2]
[2] Hearing Book G14, 124.
The Applicant sought revocation of the cancellation decision on 29 August 2024 and made representations in support of revocation.
On 28 May 2025, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision).[3] The Applicant applied to the Tribunal for review of the non-revocation decision on 3 June 2025.[4]The Tribunal heard the matter on 7 and 8 August 2025.
[3] Ibid G6, 55.
[4] Ibid G1, 1.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on…

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: Morgan and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1406
Case: [2025] ARTA 1406
Decision Date: 13 August 2025

CaseChat Overview and Summary

The Applicant, a New Zealand citizen who has lived in Australia since the age of one, faced a visa cancellation decision under s 501CA(4) of the Migration Act 1958 (Cth) due to failing the character test. The central issue before the Tribunal was whether there was another reason to revoke the mandatory visa cancellation decision, given the Applicant's significant drug-related criminal history and his long-standing presence in the Australian community. The court had to balance the seriousness of the Applicant's criminal conduct against his deep ties to Australia.

The Tribunal assessed the nature and seriousness of the Applicant’s criminal conduct, noting his two lengthy prison sentences for drug-related offences, including trafficking. The Applicant had been involved in criminal activity since 2014, indicating a pattern of drug use and associated criminal behaviour. Despite these serious offences, the Tribunal also considered the Applicant’s significant ties to Australia, having lived there for most of his life. The court examined the Applicant's representations and his background, including his difficult upbringing and struggles with substance abuse and mental health issues.

The Tribunal found that while the Applicant's drug trafficking was serious and posed a risk to the Australian community, his extensive ties to Australia, including his upbringing and family connections, were compelling factors. However, the Tribunal concluded that the seriousness of the Applicant's criminal conduct outweighed these ties, leading to the decision to uphold the visa cancellation. The Tribunal's decision was grounded in the need to protect the Australian community from the risks posed by the Applicant’s criminal history.

Orders

Orders of the court

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Background

Background to the litigation

Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which I am required to ‘read, identify, understand and evaluate’.[5] As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane,[6] ‘deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending’.[7] [5] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [24], [36].[6] [2021] HCA 41.[7] Ibid [14].BACKGROUND The Applicant is a citizen of New Zealand but has lived here since he was four years old. His older siblings were born in Australia and are Australian citizens. The Applicant was born in New Zealand because his parents went there temporarily and did not return until after his birth. He was born in New Zealand on 29 November 1990 and first came to Australia on 7 December 1991 as a one-year-old. He then returned to New Zealand in September 1992 and came back to Australia on 17 February 1995. He has not left the country since that time. He has three sisters and brother who are all Australian citizens. His mother is from Australia. His father was from New Zealand but died on 23 May 2023. When growing up, he rarely saw his father who left when he was 10 years old. His mother struggled to support the family financially. The Applicant had a difficult upbringing and was exposed to inappropriate behaviour due to his mother and her partner’s substance abuse. He had difficulties at school, but he managed to complete year 10 before undertaking a sheet plastering and roof panelling apprenticeship. He held a number of jobs after leaving school, but he had financial difficulties due to an unpaid debt from a builder who went into liquidation and ultimately, he filed for bankruptcy in 2017. Over the years, the Applicant has developed a dependency on drugs and alcohol and has been prescribed medication for attention deficit hyperactivity disorder (ADHD). His criminal history began in 2015. On 16 December 2015 he was sentenced to 3 years four months imprisonment for drug related offences. On 10 October 2022 he was sentenced to imprisonment for 10 years and six months for further drug-related offences including trafficking a drug of dependence in a large commercial quantity. This most serious offending related to events in November and December 2019 when he was suffering from serious mental and physical illness.Direction 110 The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, 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 (the Direction) has application.[8] [8] 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 (‘The Direction’).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:(a)would be the reason, or a part of the reason, for making the original decision; and(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.(3) As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way that the Minister considers appropriate in the circumstances:(i)a written notice that sets out the original decision; and(ii)particulars of the relevant information; and(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.…(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked. Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.ISSUES BEFORE THE TRIBUNAL The Applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which I am required to ‘read, identify, understand and evaluate’.[5] As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane,[6] ‘deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending’.[7] [5] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [24], [36].[6] [2021] HCA 41.[7] Ibid [14].BACKGROUND

Ratio Decidendi

Legal Principle Established

The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[11]CONSIDERATION[11] Ibid 7(2).Protection of the Australian community – 8.1 of Direction 110 When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[12] As required by paragraph 8.1(2) of the Direction, I give consideration below to:(a)the nature and seriousness of the non-citizen’s conduct to date; and(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[12] Ibid 8.1(1).The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110 When considering the nature and seriousness of the Applicant’s conduct, I take into account his criminal activity and other serious conduct. The Applicant has served two terms of imprisonment for possession and trafficking of drugs and other related criminal offending. When being sentenced on 10 October 2022 for his most recent offences the sentencing judge referred to the Applicant’s criminal history as follows:[13]You were arrested on 1 July 2014, for offending dealt with by her honour Judge Hogan, and you were remanded in custody until granted bail on 16 September 2014. On 16 December 2014, on bail, you committed further offences relating to the possession of weapons, ammunition and drugs. Your bail was revoked. On 27 July 2015, you were convicted of these offences at the Frankston Magistrates Court and sentenced to an aggregate term of four months’ imprisonment. You appealed to the county court, on 30 November 2015 you were resentenced to an aggregate fine of $500 and 90 days’ imprisonment, with 90 days’ pre-sentence detention being declared as served.Judge Hogan sentenced you on 4 December 2015 and that was to a total effective sentence of 3 years and 4 months’ imprisonment, fixing a non-parole period of 20 months. This was for offending including trafficking in MDMA amounting to 847 tablets, which weighed, in mixture form, 249 grams, having a purity of 20 per cent. You will also dealt with for a range of other offending including firearm and drug possession, including a low-level example of trafficking methylamphetamine which related to a total mixture of 2.9 grams, and the possession of a tablet press.You do not appear to have learned from this previous interaction with the criminal justice system. The offending before me does represent a concerning escalation.[13] Hearing Book G4, 42 [24] – [26]. The Applicant explained in his oral evidence that he was addicted to drugs at the time of the offending in 2014. There was a period of heavy drug use by the Applicant in 2013 and 2014 up until he was arrested (again) and his bail was revoked on 15 December 2014. This period of offending resulted in the first and second custodial sentences which were served together.