Muliaga and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 2026

Muliaga and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2026 (9 October 2025)

Applicant/s:  Junior Jordan Muliaga

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/4381

Tribunal:Senior Member D Thomae

Place:Brisbane

Date:9 October 2025

Decision:Pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal decides to set aside the decision under review not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth), and substitutes that decision with a decision that the Tribunal revokes the decision to cancel the visa.

................[Sgnd]............................................

Statement made on 09 October 2025 at 3:01pm

Catchwords

MIGRATION – Non-revocation of mandatory 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 revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– decision under review set aside

Legislation

Administrative Review Tribunal Act 2024 (CTH)
Crimes Act 1914 (CTH)
Migration Act 1958 (CTH)
Penalties and Sentences Act 1992 (QLD)

Cases

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 252

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

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

Hartwig v PE Hack [2007] FCA 1039

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 185 ALR 350
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
Minister for Home Affairs v Buadromo [2018] 267 FCR 320
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 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

INTRODUCTION

  1. Mr Junior Jordan Muliaga (the Applicant) is a 48-year-old citizen of New Zealand who arrived in Australia in December 1992 when he was 15 years old as a holder of a Subclass 444 Special Category (Class TY) visa (visa) and has never departed this country.

  2. The Applicant has an extensive criminal history and is presently in immigration detention, after being sentenced to imprisonment for 4 years, imposed for trafficking in dangerous drugs. As a result of his sentence for this offending, his visa was mandatorily cancelled on 24 July 2024. Following representations made by the Applicant to revoke the mandatory cancellation of his visa, on 17 July 2025 a delegate of the Minister (the Minister or the Respondent) refused to revoke the mandatory cancellation of his visa (the reviewable decision).

  3. By an application for review filed on 20 June 2025 in the Tribunal, Mr Muliaga seeks a review of the decision not to revoke the mandatory cancellation of his visa.

THE HEARING

  1. The hearing…

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Details
AGLC
Muliaga and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2026
Case
[2025] ARTA 2026
Decision Date

CaseChat Overview and Summary

The case under review involves the Applicant, who holds a Class TY subclass 444 Special Category (Temporary) Visa, and the Minister for Immigration and Citizenship. The Applicant's visa was subject to a mandatory cancellation due to failing the character test. The core issue before the court was whether the Minister had sufficient grounds to revoke the mandatory cancellation of the Applicant's visa, considering factors beyond the character test, as per Ministerial Direction No. 110.

The court needed to determine if there were any other reasons to revoke the mandatory cancellation decision, particularly focusing on the impact on the Applicant's grandchildren residing in Australia. The primary consideration was whether the non-revocation of the visa cancellation would be in the best interests of the Applicant's grandchildren, as it might prevent any form of contact between the Applicant and his grandchildren in Australia. The court had to weigh this against the Australian community's expectation that non-citizens with serious character concerns should not be allowed to enter or remain in Australia.

The court concluded that the non-revocation of the visa cancellation would not be in the best interests of the Applicant's grandchildren, as it would prevent any contact between them. Given this, the court found that the decision to not revoke the cancellation was not in line with the best interests of the children. Therefore, the decision under review was set aside.

The final order of the court was to set aside the decision not to revoke the mandatory cancellation of the Applicant's visa, effectively allowing the possibility for the Applicant to maintain contact with his grandchildren in Australia.

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

I am of the view that a non-revocation decision is not in the best interests of the Applicant’s grandchildren, in that it will prevent the possibility of person to contact between the Applicant and his grandchildren in Australia.Conclusion: Best interests of minor children in Australia affected by the decision Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration 4 weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa. Paragraph 8.5(1) of the Direction says that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[16][16] Paragraph 8.4(1) of the Direction. Paragraph 8.5(2) of the Direction says that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind, relevantly:(a)acts of family violence; or(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or(f)worker exploitation.[17][17] Paragraph 8.5(2) of the Direction. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[18] [18] Paragraph 8.5(3) of the Direction. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined[19]:This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.[19] This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185

Ratio Decidendi

Legal Principle Established

Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration 4 weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa. Paragraph 8.5(1) of the Direction says that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[16][16] Paragraph 8.4(1) of the Direction. Paragraph 8.5(2) of the Direction says that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind, relevantly:(a)acts of family violence; or(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or(f)worker exploitation.[17][17] Paragraph 8.5(2) of the Direction. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[18] [18] Paragraph 8.5(3) of the Direction. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined[19]:This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.[19] This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 The Applicant has not engaged in any acts of family violence, causing a person to enter into a forced marriage, serious crimes against women, children or other vulnerable members of the Australian community, human trafficking or crimes that are of serious international concern or worker exploitation.