Neale and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 190
•27 February 2025
Neale and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 190 (27 February 2025)
Applicant:Joseph Charles Neale
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10662
Tribunal:General Member A. Maryniak KC
Place:Sydney
Date of Decision: 27 February 2025
Date of Written Reasons: 7 March 2025
Decision:The decision of the Respondent’s delegate dated 17 December 2024 not to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’), the cancellation of the Class TY Subclass 444 Special Category (Temporary) visa is set aside and substituted with a decision that the cancellation of the Applicant’s visa be revoked under section 501CA(4)(b)(ii) of the Act.
.......................[SGD]...................................
General Member A. Maryniak KC
Catchwords
MIGRATION – mandatory cancellation of Applicant’s visa – citizen of New Zealand – invited to make representations – failure to pass character test – supply commercial quantity of prohibited drug - whether another reason to revoke cancellation – Ministerial Direction No. 110 – primary and other considerations - protection of the Australian community – strength nature and ties – best interests of minor children – expectations of Australian community – legal consequences – impact on Australian business interests – reviewable decision set aside and substituted
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1311
Singh v Minister for Home Affairs [2019] FCA 905
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
BACKGROUND
The 50-year-old Applicant, a New Zealand citizen, first arrived in Australia in April 2011. He has essentially lived in Australia with his family since that time save for a period between August 2012 and January 2013, after he sustained a serious workplace back injury in mid-2012. During that period the family lived in New Zealand with the Applicant’s mother, which was difficult, and the Applicant returned to Australia a number of times for injury related medical appointments.
The Applicant sought review of a decision of the Respondent’s delegate dated 17 December 2024 not to revoke the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. On 27 February 2025 the Tribunal set aside that reviewable decision and substituted it with a decision that the cancellation of the Applicant’s visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal sets out its Reasons below.
CONSIDERATION
The Tribunal considered the documentary evidence before it contained within the agreed Hearing Bundle lodged by the parties on 25 February 2025 (‘HB’). The Tribunal also considered the testimony of:
(a)the Applicant;
(b)Mr Neil Moore, Director of the Applicant’s past and future employer MTN Group;
(c)Ms Lisa McCready, the Applicant’s former partner and mother of their 3 children;
(d)Ms Neale;
(e)the Applicant’s minor daughter; and
(f)Ms Nicole Rothwell, a close family friend.
The Tribunal found all witnesses to be credible in their testimony, accepting that Ms McCready’s testimony was impacted by the substantial challenges she is facing, including on-going mental health challenges.
During the course of the 2-day hearing on 26 and 27 February 2025 it was evident, upon the Applicant’s application, that an Order was necessary to prevent the publication of the names of the Applicant’s two minor children, and that the testimony of the Applicant’s 22-year-old daughter Ms Neale and the Applicant’s minor daughter would be given in private. Such an Order was made on 27 February 2025 with the consequence that these Reasons are limited by that Confidentiality Order.[1]
[1] Order made pursuant to ss 69(3)(a) and 70(1) of the Administrative Review Tribunal Act 2024 (Cth).
It was agreed by the parties and the Tribunal found that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act as he was sentenced to imprisonment on 3 November 2022 for a term of 4 years and 3 months, with a non-parole period of 2 years and 4 months.[2] He was recently released into Immigration Detention.
[2] Documents lodged pursuant to s 501G of the Act (‘G-Documents’), G7 p 130.
The issue before the Tribunal was whether there was another reason why the original decision should be revoked pursuant to section 501CA(4)(b)(ii) and the Tribunal determined that there was.
Direction No. 110
In determining whether the Applicant’s visa should be cancelled, the Tribunal applies the relevant considerations set out in paragraphs 8 and 9 of Ministerial Direction 110 (‘The Direction’). Paragraph 5.2 of The Direction provides the following framework principles:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Tribunal, informed by these principles, then takes into account the primary and other considerations, with Primary Consideration 1 to be given greater weight, per paragraph 7(2) of the Direction, and the Primary Considerations to be given greater weight than the other considerations.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 8.1(2) of The Direction requires consideration be given 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.
Nature and Seriousness of the conduct
The Tribunal finds that the Applicant’s offending falls into two categories. As summarised by the Respondent[3] his Criminal Offending is as set out in the table below:
[3] Respondent’s Statement of Facts, Issues and Contentions dated 19 February 2025 (‘RSFIC’) at [33].
Date Offence Sentence 13 July 2015 Drive with middle range
PCA - First offence
Fine: $700.00
Driver disqualification:
6 months
11 November 2020 to 2 December 2020
Sentenced: 3 November 2022
Supply prohibited drug
commercial quantity
(Methylamphetamine)
Imprisonment:
4 years and 3 months
Non parole period:
2 years and 4 months
26 January 2022
Sentenced: 6 June 2022
Drive vehicle under
influence of drugs - First
offence
Fine: $1,200.00
Driver disqualification:
12 months
Whilst the Criminal Offending does not fall within that viewed ‘very seriously’ by the Australian Government and the Australian community under paragraph 8.1.1(1)(a), the Tribunal considers that offending to be serious. In particular, the crime of suppling a commercial quantity of methylamphetamine or ‘ice’ (the Index Offence) is serious and would have caused great consequential harm to members of the Australian community. It is a highly addictive illicit drug with potentially devastating impacts on users.
In respect of the Index Offence, as the Respondent correctly highlights, a significant term of imprisonment was imposed on the Applicant. However, the Applicant’s offending was limited to a 22-day period in late 2020 with his primary role being as ‘courier’. He collected and transported the drugs on two occasions from Sydney and carried out several deliveries at the direction and instruction of a principal offender. His role was secondary, and he was not otherwise involved in organising supply chains, recruiting others, and had no financial stake in the broader operation. His offending was discrete from that of the principal offenders. The sentencing Judge found the Applicant’s offending as ‘below mid-range’.[4]
[4] G7 p 76.
It is also necessary to look at the circumstances leading up to such offending. Prior to the lockdowns associated with Covid-19, which commenced in about March 2020, the Applicant had been employed full time as an excavator operator with EBH Environmental since January 2019. Prior to that job he had worked on a contract-by-contract basis for Dig Deep Excavations since August 2016, after he had recovered from back surgery associated with his workplace injury in 2012.
The Applicant faced significant financial challenges in 2020 after the loss of his full-time job and it was extremely difficult for him to continue to provide for his then partner (who he separated from during that period) and their children, as he had essentially been the income earner for the family. He did get some occasional work through a labour hire agency after the lockdowns started to ease in about May 2020, but he eventually started to fall behind in his home rent payments and it was becoming increasingly difficult for him to keep the family’s rented home and support his family financially. This situation placed the Applicant under severe mental stress and the evidence establishes that prior to his incarceration he had a relatively ‘naive’ or limited view about mental health, and the tools and services which are available to assist people with mental health issues. His view had been that as ‘the man of the house’ he would just find some way to push through.
The Applicant testified and the Tribunal accepts that the offending conduct was initially explained to him as ‘just driving a car’, but the Applicant soon knew that he was driving for the purpose of delivering ‘meth’. The evidence also establishes that he took up using meth (up to a gram a day) on various days within the 22-day period of offending and that whilst the primary motivator for the Applicant offending was to provide for his family, an ancillary benefit was access to meth for his individual use. The Tribunal is satisfied that the Applicant did not use ‘meth’ before the 22-day offending period and has not subsequently used it after his arrest in December 2020, save for unwittingly, ingesting an illicit drug in January 2022 as discussed below.
The risk to the Australian Community should the Applicant commit further offences or engage in other serious misconduct
The Applicant was arrested in December 2020 and once he could raise the funds, was released on bail in January 2021. Prior to incarceration upon sentencing on 3 November 2022 the Applicant was on bail living within the Australian community for nearly two years. During that significant period he managed to overcome the challenge of living with his family in a tent for about 9 months, securing a full time job with MTN Group (which importantly is available to him to resume if he is released), then obtained a rented home for his family to live in and complied with his bail conditions completely, save for the sole drug driving charge which occurred on 26 January 2022.[5] For that first offence he was fined $1200 and disqualified from driving for 12 months on 6 June 2022.
[5] HB11 p 873.
The Tribunal has considered the documentary evidence and testimony from various witnesses relating to that drug driving offence. The Tribunal heard consistent evidence from all relevant witnesses who testified, which supports the Applicant’s version of events that this had occurred because of a drink-spiking at a family barbeque the day before, by individuals the Applicant ceased contact with after the event. The Applicant said that he had had some drinks at that family barbeque, which was unusual as he rarely drank alcohol after the completion of a safe driving course in 2015. Considering that body of evidence, and the fact that this was the Applicant’s first and only drug driving charge ever, the Tribunal accepts the Applicant’s evidence. The fact that the Applicant was not also charged with drink driving is consistent with his evidence that he was concerned that following day not to drive in case he was over the limit, but eventually agreed to drive his daughter to work because the person who was to have driven her had become unavailable.
The significant rebuilding of family life the Applicant achieved during his time on bail was discussed by Ms Diana Grujoska, Psychologist, in her report dated 5 April 2022, some 16 months after the Index Offence. Ms Grujoska’s report was not challenged by the Respondent. Consistent with the evidence of other witnesses before the Tribunal Ms Grujoska stated:[6]
Mr Neale seemed to genuinely express regret and remorse and showed a good understanding of the consequences of his actions. He has managed to cease all substance use and is making positive steps to re-enter into society such as securing employment and a house. He currently has a good support network in his family for whom he is the sole income provider at present. In addition, Mr Neale’s offences seemed to have occurred over a brief time and this antisocial behaviour appears to have been encapsulated and limited to that period, indicating that he does not have an entrenched antisocial disposition. Mr Neale does not appear to be a recidivist offender and his offences were directly linked to his drug habits and need to provide for his family. Mr Neale has demonstrated commendable perseverance in the past by continuing education whilst virtually homeless and persisting in providing for his family until his unfortunate workplace accident. This prosocial attitude is a protective factor that lowers the risk of reoffending and should be fostered in order to facilitate in Mr Neale’s rehabilitation.
[6] HB3 p 638 [26].
Ms Grojoska recognised that maintaining stable employment and family were key positive, protective factors against further offending[7] and that there was a low risk of the Applicant re-offending. This is underscored by the compelling evidence of Mr Moore and Ms Rothwell, which satisfies the Tribunal that the Applicant can immediately resume his stable full time job as an excavator operator and that he is fully committed to his children, who desperately need their father at this critical time in each of their lives.
[7] Ibid [27].
The Tribunal notes that the Applicant was a ‘model’ prisoner during his incarceration, placed in minimum security and permitted to work outside the prison grounds. The evidence establishes, and the Tribunal is satisfied that the ‘bupe’[8] incident in January 2024 was a once off and out of character for the Applicant as reflected in the prison authority’s approach of leaving the Applicant in minimum security after that incident.
[8] Understood to be the prescription drug Buprenorphine.
The Tribunal is satisfied that there is a low risk of the Applicant re-offending so far as the Index Offence is concerned and his other criminal offending. He is remorseful and appreciates the harm his Index Offence could cause and his conduct since his arrest has essentially been consistent with an individual who has rehabilitated.
The Tribunal has also considered the Applicant’s various traffic infringements.[9] Whilst there are a number of mostly low range speeding fines, these have occurred over a 10-year period and, as the evidence suggests, at least a couple of them were likely committed by the Applicant’s former partner. Having considered the evidence in respect of these traffic infringements the Tribunal is satisfied that they are of only limited seriousness in nature and with the Applicant knowing the importance of keeping his licence to enable his continued employment, the Tribunal finds that there is only a low risk of the Applicant obtaining further traffic infringements.
[9] H11 pp 881-3.
This primary consideration weighs slightly in favour of visa cancellation.
Family violence
The second primary consideration is not relevant, hence it is given neutral weight.
The strength, nature and duration of ties to Australia
The Applicant has lived in Australia since 2011, the mother of his children Ms McCready, who he has a 24-year history with, and his three children all live in Australia. Although presently separated, Ms McCready is still reliant upon the Applicant for support and they continue their ongoing commitment to raising their 3 children as best they can. Although Ms Neale is now 22 years old, it is quite clear from her evidence that she is still very reliant upon her father and his absence from Australia would have a substantially negative impact upon both Ms McCready and Ms Neale.
The Applicant has also developed a strong friendship with Ms Rothwell, who have known each other since they started working together some years ago. Their friendship is a mutually supportive and caring one, with Ms Rothwell going out of her way to assist the Applicant and each of his children, especially since the Applicant has been incarcerated since November 2022. Prior to that, the Applicant would often help Ms Rothwell with various tasks as she herself is a single mother and the full-time carer for her own mother, who is very unwell. Ms Rothwell’s evidence was very supportive of the Applicant and his character, and also his commitment to his children and his rehabilitation. Ms Rothwell will also be negatively impacted if the Applicant is removed from Australia.
The Applicant has spent the majority of his years in Australia working and paying taxes and he also took in another family for some months who were escaping domestic violence, despite the challenges he himself had in providing for his own family at the time.
The Tribunal finds that this primary consideration weighs heavily against the Applicant’s visa cancellation.
Best interests of minor children in Australia
The evidence from Ms Neale and the Applicant’s minor 17-year-old daughter regarding the latter and the Applicant’s son, 14, is compelling. Due to the Confidentiality Order it is not discussed in these Reasons. However, such evidence was the critical reason the Tribunal pronounced its decision last week, prior to these Reasons being finalised in writing. Each of the Applicant’s two minor children need their father now more than ever and they need their father in Australia, for both financial and familial support at a crucial time when each is finding their way in the world. Ms McCready can only provide very limited support to the two minor children, and Ms Rothwell’s evidence was consistent in this regard. Both minor children have lived most of their lives in Australia and the evidence established that it would not be feasible or indeed possible for either or both of the Applicant’s children to move to New Zealand, if the Applicant were removed. Further, the Tribunal notes that the Applicant’s minor daughter has recently become an Australian citizen and that the removal of the Applicant from Australia may have a negative impact upon the Applicant’s son obtaining Australian citizenship in the future.
The Tribunal finds that this primary consideration weighs very heavily against the Applicant’s visa cancellation.
Expectations of the Australian Community
The Australian community expects non-citizens to obey Australian laws whilst in Australia. This expectation is to be considered normatively by reference to the Direction itself. The expectations of the Australian community as a whole are to be considered.[10] It is not for the Tribunal itself to determine these expectations.
[10] The Direction para 8.5(4).
In light of the submissions of the Respondent and the matters discussed in respect of primary consideration 1 above the Tribunal finds that this primary consideration weighs in favour of visa cancellation.
OTHER CONSIDERATIONS
Legal consequences of decision
Any decision not to revoke the cancellation of visa decision would have a detention and removal impact upon the Applicant pursuant to sections 189 and 198 of the Act. Further, with the Applicant’s son having no independent means of financing his own return to New Zealand if the Applicant was returned, any assisted removal such as via Homeward, which may be necessary, would have implications upon the Applicant’s son, pursuant to section 199(3) of the Act. It was also submitted that such a decision may have an impact upon the Applicant’s son obtaining Australian citizenship in the near future. Without forming a final view upon the latter, in the circumstances the Tribunal finds that this other consideration weighs only minimally against the Applicant’s visa cancellation.
Extent of impediments if removed
In respect of any impediments if removed, the 50-year-old Applicant is in good health and is unlikely to face any significant linguistic or cultural barriers if returned to New Zealand. However, the Applicant has not lived in New Zealand for many years, has little if any contact with anyone living there including any employment contacts and will face significant mental health challenges as a consequence of being permanently separated from his children.
The Tribunal finds that this other consideration weighs slightly against the Applicant’s visa cancellation.
Impact on Australian business interests
In light of the evidence of Mr Moore, Director of the Applicant’s former and future employer, the Tribunal is satisfied that the Applicant has his former full-time job as an excavator operator waiting for him if he is released back into the Australian community. Whilst Mr Moore fairly accepted that it was possible to otherwise fill the job left vacant when the Applicant was incarcerated, he did state that the Applicant, in particular, was a very good worker and operated excavators with a rare precision, which was necessary as most of the excavator work Mr Moore’s business did was for the installation of in ground fibreglass pools. The Tribunal accepts that the Applicant’s abilities as an excavator operator are highly valued and important to an Australian business.
In applying this consideration, it is not restricted to a narrow reading of the “delivery of a major project or delivery of an important service in Australia” as to do so would misconstrue the Direction.[11]
[11] Singh v Minister for Home Affairs [2019] FCA 905 at [10].
This approach was adopted in Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[12]
[12] [2022] FCA 1311 (as per Rangiah J) at [62] to [68].
The Tribunal seems to have interpreted the Minister’s submission as being that para 9.4.2 of Direction 90 applies only to impacts upon a “major project” or “important service”. The Tribunal accepted that construction of para 9.4.2 to be correct.
The applicant relies upon Singh v Minister for Home Affairs [2019] FCA 905. That case concerned the Tribunal’s application of para 10.3 of Ministerial Direction 65 (since superseded by Direction 90), which similarly required decision-makers to consider the:
Impact on Australian business interests if the non-citizen’s visa is cancelled, noting that any employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project or delivery of an important service in Australia.
In that case, the applicant had worked as a security guard and his supervisor had given evidence that he was a dedicated and valuable employee. The Tribunal concluded at [160] that because the severing of employment links would not, “significantly compromise the delivery of a major project, or delivery of an important service in Australia”, para 10.3 had no application to the services of the applicant and could not weigh in his favour at all.
Justice Middleton held that the Tribunal had misconstrued the Direction:
I can immediately say that the correct interpretation of the Direction is not to focus only on the delivery of a major project or delivery of an important service in Australia. The focus has to be on the impact on Australian business interests if the non-citizen’s visa is cancelled. In my view, it is clear that the Tribunal fell into error by misconstruing paragraph 10.3 of the Direction and this is apparent from [160] of the Tribunal’s reasons.
In effect, the Tribunal accepted a submission put on behalf of the Minister that the Direction applied solely to an occasion where cancellation of the visa would significantly compromise the ‘delivery of a major project or delivery of an important service in Australia’. With that interpretation in mind, the Tribunal then looked at the evidence and found that there was no evidence that enabled the Tribunal to reach that conclusion.
The Minister submits that Singh is distinguishable as, in this case, the Tribunal did not find that para 9.4.2 could not extend to other business interests, but only that the claimed interests were, “not ... the sort of impact on Australian business interests to which para 9.4.2 of Direction 90 is referring”. The Minister submits that the Tribunal’s observation was self-evidently correct having regard to the terms of para 9.4.2.
I do not accept the Minister’s submissions. The Tribunal’s finding that the claimed impact was, “not ... the sort of impact on Australian business interests to which para 9.4.2 of Direction 90 is referring” must be understood as a finding that para 9.4.2 of Direction 90 applies only to impact upon a “major project” or “important service”. Like in Singh, the Tribunal found that it was not required to consider any impact upon business interests unless the impact was upon a “major project” or an “important service”.
Paragraph 9.4.2 of Direction 90 commences by stating that, “Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia ...”. The requirement is to consider any impact on Australian business interests. The requirement is not confined to business interests of a particular scale or importance.
Mr Moore’s evidence satisfies the Tribunal that there will be at least some incremental negative impact upon his business if the Applicant is removed from Australia and not able to resume his job, which Mr Moore has kept open for him, in the event he is permitted to stay.
Hence the Tribunal finds that this other consideration weighs slightly against the Applicant’s visa cancellation.
CONCLUSION
The Tribunal has carried out the evaluative exercise of weighing up the considerations to determine whether it is satisfied that there is another reason to revoke the visa cancellation decision.
On balance, having allocated the requisite weights to the Primary and Other Considerations as discussed above and applying the respective weights as found by the Tribunal, the Tribunal is satisfied that the considerations in favour of revoking the visa cancellation decision outweigh the considerations against such a revocation.
DECISION
The decision of the Respondent’s delegate dated 17 December 2024 not to revoke, under section 501CA(4) of the Act, the cancellation of the Class TY Subclass 444 Special Category (Temporary) visa is set aside and substituted with a decision that the cancellation of the Applicant’s visa be revoked under section 501CA(4)(b)(ii).
1. I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC
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Associate
Dated: 7 March 2025
Date of hearing: 27 January 2025 Advocate for the Applicant: Ms Rebekah Stevens Solicitors for the Applicant: Taperell Rutledge Lawyers Advocate for the Respondent: Ms Victoria Ginnane Solicitors for the Respondent: Mills Oakley
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