Ngati and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1418

Ngati and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1418 (19 August 2025)
Applicant/s:  Anthony Bradley Ngati
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/3975
Tribunal:Senior Member K Rosser
Place:Sydney
Date:19 August 2025
Decision:The decision under review is affirmed.

.....................SGD..............................
Senior Member K Rosser
CATCHWORDS
MIGRATION – Cancellation of a Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) – where the applicant does not pass the character test – whether there is another reason to revoke the cancellation – Direction No 110 - protection of the Australian Community – expectations of the Australian Community – interests of minor children – legal consequences of decision under review - impediments
LEGISLATION
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)
Migration Act1958 (Cth)
Migration Regulations1994 (Cth)
CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2
Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 86
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 488
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration [2018] FCA 594
SECONDARY MATERIALS
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sentencing Bench Book – Judicial Commission of New South Wales – November 2024
Statement of Reasons
INTRODUCTION

The applicant, who is a national of New Zealand, seeks review of a decision made by a delegate of the Minister on 29 May 2025 not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY) (subclass 444) visa (visa). The delegate’s decision was made under s 501CA(4) of the Migration Act 1958 (Cth) (Act)
The applicant’s visa was cancelled on 27 July 2023 because the delegate found that the applicant had a substantial criminal record. This is because the applicant was convicted of several offences on 5 May 2023 and was sentenced to an aggregate term of imprisonment of four years and nine months.
On 18 August 2023, the applicant made representations seeking revocation of the delegate’s decision. On 3 February 2025, the applicant was given an opportunity to provide further information and was sent documents that were before the Minister’s delegate, as well as a copy of Ministerial Direction 110.
On 29 May 2025, the applicant was notified of the delegate’s decision not to revoke the cancellation of his visa. He lodged the application for review on 5 June 2025.
The application for review was heard on 4 and 5 August 2025. The applicant appeared in person at the hearing and represented himself. The applicant had requested to appear by video link from Goulbourn Correctional Centre. However, this could not be accommodated for technical reasons.[1] The Minister was represented by Ms K Theocharous, solicitor.
[1] This is…

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.

Continue reading Ngati and Minister for Immigration and Citizenship (Migratio...

Details

AGLC: Ngati and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1418
Case: [2025] ARTA 1418
Decision Date: 19 August 2025

CaseChat Overview and Summary

The case involves the applicant, who was born in New Zealand but has lived in Australia since he was a child, seeking review of a decision by the Minister for Immigration and Citizenship to cancel his Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth). The applicant does not meet the character test and the dispute centres on whether there are other reasons to revoke the cancellation of his visa. The matter was heard and determined by the Administrative Appeals Tribunal. The legal issues for the Tribunal to decide were whether the applicant's personal circumstances, including his upbringing, history of sexual abuse, and mental health issues, combined with his limited remorse and propensity to re-offend, outweighed the impact of the decision on his immediate family members in Australia. The Tribunal also had to consider whether the applicant's conduct in prison and immigration detention provided any further grounds for revoking the cancellation.

In its decision, the Tribunal noted the seriousness of the applicant's criminal offences and the lack of deterrence by previous sanctions, including incarceration and previous tribunal decisions. The Tribunal found that the applicant's tendency to minimise his offending and limited remorse indicated that he was more concerned about the impact on his family and his own situation than the effect of his crimes on his victims. The Tribunal concluded that the risk of the applicant re-offending, and the potential harm to the Australian community if he did, made it unacceptable to revoke the visa cancellation. The Tribunal also found that the strength, nature, and duration of the applicant's ties to Australia, including his supportive family, did not sufficiently outweigh the need to protect the Australian community. The Tribunal ultimately decided that the interests of the Australian community in preventing further offending by the applicant were paramount and the cancellation of the visa should not be revoked.

The Tribunal's final order was that the decision of the Minister for Immigration and Citizenship to cancel the applicant's visa under s 501CA(4) of the Migration Act 1958 (Cth) should not be revoked.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Relevant parts of the documentary evidence, the oral evidence and the submissions are considered below. BACKGROUND The following background is taken largely from the chronology submitted by the respondent and the respondent’s statement of facts, issues and contentions (SOFIC),[2] the sentencing judge’s remarks[3] and from other material contained in the HB. This material includes but is not limited to the applicant’s affidavit dated 31 March 2023[4] and a report prepared by Kris North, forensic psychologist, on 22 March 2023,[5] both of which were before the sentencing judge.Personal background [2] HB pages 79-134.[3].HB pages 561-590.[4] HB pages 688-690.[5] HB pages 677- 686.Family The applicant was born in Auckland, New Zealand on 15 August 1981 and is the third eldest of fourteen children.[6] He moved to Australia with his parents and older siblings on 10 July 1982. The applicant has not left Australia since that time. His younger siblings were born in Australia.[6] At the hearing, the applicant stated that there were fifteen children. He is also reflected in a report prepared by Dr John Roberts, a consultant forensic psychiatrist, which is at HB 703-717. Whether the applicant was one of fourteen children or fifteen children is not relevant for the purposes of these proceedings. The applicant has been in a relationship with his partner Ms DK since they were teenagers. They have had four children together: KN (who passed away as a result of asthma in 2017), JN (aged 20), AN (aged 14) and LN (aged 13). Ms K and their surviving children are close to and supportive of the applicant and have all provided letters in support of the cancellation of the applicant’s visa being revoked. The applicant was exposed to domestic violence and alcohol abuse from a young age. When he was younger, the applicant thought this was normal because his family and extended family would drink a lot of alcohol and become violent to one another. The applicant has reported the violence as constant and usually involving his mother as the victim. In addition, family members drank to the point where they would lose control. All but five of the applicant’s siblings have been involved in criminal activities and have been in and out of gaol. The applicant’s father spent time in prison in New Zealand and also spent time in custody in Australia but, according to the applicant, this was not for long periods. Recent traumatic events for the applicant and his family include the murder of one of the applicant’s younger brothers, the death of the applicant’s father from cancer in 2016, and the death of applicant’s son KN in 2017. The applicant had a socially impoverished upbringing as his parents struggled financially and he often attended school without lunch or a proper school uniform. He could not go on school excursions unless they were free and his family couldn't afford to pay for him to participate in sports on sports day. The applicant attended four different primary schools, three high schools and a behaviour school. He was expelled from two of the high schools in year 7 and left school in year 9. The applicant claims that he was sexually abused by a school principal when he was in primary school.

Evidence

Evidence Before The Court

The Tribunal has jurisdiction to review a decision made under s 501CA(4) to refuse to revoke a decision to cancel a visa under s 501(3A), where the application for review is lodged within nine days after the decision is notified: s 500(6B). As noted above, the application for review was lodged on 5 June 2025, which is within nine days after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the application. EVIDENCE AND SUBMISSIONS The following material was included in the Hearing Bundle (HB) prepared by the Minister:(a)The applicant’s statement dated 25 July 2025 – Exhibit A1(b)The statement from the applicant’s partner Ms DK – Exhibit A2(c)The undated letter of support from the applicant’s daughter LN – Exhibit A3(d)The undated letter of support from the applicant’s son AN – Exhibit A4(e)The letter of support dated 23 July 2025 from the applicant’s daughter JN – Exhibit A5(f)The undated letter of support from the applicant’s friends Amita Roy and Kyle Fuller – Exhibit A6;(g)The G-Documents – Exhibit R1(h)The Minister’s statement of facts, issues and contentions (SOFIC) – Exhibit R2(i)The Minister’s chronology of relevant facts – Exhibit R3(j)The Minister’s supplementary bundle of selected summonsed material – Exhibit R4(k)The Minister’s further supplementary bundle of selected summonsed material – Exhibit R5. Additional summonsed material produced by the NSW Department of Communities and Justice is contained in a supplementary bundle (SB1). I have also considered:(a)The oral evidence given by the applicant and his partner Ms DK; and (b)The closing oral submissions made by the applicant and by the applicant, assisted by Ms DK. Relevant parts of the documentary evidence, the oral evidence and the submissions are considered below. BACKGROUND The following background is taken largely from the chronology submitted by the respondent and the respondent’s statement of facts, issues and contentions (SOFIC),[2] the sentencing judge’s remarks[3] and from other material contained in the HB. This material includes but is not limited to the applicant’s affidavit dated 31 March 2023[4] and a report prepared by Kris North, forensic psychologist, on 22 March 2023,[5] both of which were before the sentencing judge.Personal background [2] HB pages 79-134.[3].HB pages 561-590.[4] HB pages 688-690.[5] HB pages 677- 686.Family The applicant was born in Auckland, New Zealand on 15 August 1981 and is the third eldest of fourteen children.[6] He moved to Australia with his parents and older siblings on 10 July 1982. The applicant has not left Australia since that time. His younger siblings were born in Australia.[6] At the hearing, the applicant stated that there were fifteen children. He is also reflected in a report prepared by Dr John Roberts, a consultant forensic psychiatrist, which is at HB 703-717. Whether the applicant was one of fourteen children or fifteen children is not relevant for the purposes of these proceedings.

Decision

Reasons for decision

In my view, the applicant’s tendency to minimise and (to an extent) deny his offending also demonstrates that his remorse is limited. While he acknowledges that drugs and a deterioration in his mental health have led him to make poor choices, I conclude that the applicant’s remorse is motivated more by regret for what he has put his family through and distress at the situation in which he finds himself than it is by remorse for the offending itself or the effect of the offending on his victims. Conclusion in relation to protection of the Australian community I have found that the applicant’s offences were serious to very serious. I accept that should the applicant again engage in similar conduct the resulting harm to an individual and more broadly to the Australian community would be serious. I consider it likely that he will re-offend. I also consider that the applicant has demonstrated limited remorse. The view of the Government is that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In this regard, I have had regard to 8.1.2(1), which states that ‘[s]ome conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable’. This is a case in which the Government’s view as expressed in 8.1.2(1) is persuasive. The applicant was not deterred from re-offending by the support of his partner, children and extended family. He was not deterred from offending by the death of his father in 2016 and his older son KN in 2017 and the fact that he could not attend their funerals because he was incarcerated. He was not deterred from offending by a formal warning of the consequences of offending. He was not deterred from re-offending by AAT decisions in his favour. I accept that the applicant genuinely wants to stop offending and turn his life around. I also accept that the applicant was sexually abused as a child and young person and that this led to drug use and offending. However, I consider the nature and seriousness of the applicant’s offending and the likely impact on victims and on the Australian community if the applicant were to re-offend makes unacceptable any risk that the applicant’s offending may be repeated. I conclude that protection of the Australian community weighs very strongly against revoking the cancellation of the applicant’s visa. Family Violence – 8.2 The applicant has not committed a family violence offence. This consideration is neutral. The strength, nature and duration of ties to Australia – 8.3 In accordance with 8.3(1) of the Direction, I have considered the impact of the decision on the applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The applicant’s immediate family members who are either Australian citizens or who have a right to remain in Australia indefinitely are his partner Ms DK, his children JN, AN and LN, and his mother and siblings.

Ratio Decidendi

Legal Principle Established

The Court also considered the applicant’s personal circumstances, in particular childhood, education and employment history, his relationship history, history of prior sexual abuse, and physical and mental health. Conduct in prison and immigration detention A Pre-Release report dated 17 December 2024 was prepared by Community Corrections Cessnock and is included in documents summonsed from Corrective Services NSW.[19] The report notes that the applicant was classified as an A2 Maximum Security Inmate on 19 May 2023, with the classification being confirmed on 15 January 2024 and 18 July 2024. The report also states that during the applicant’s current period of incarceration, he has been charged with sixteen institutional offences, which include but are not limited to offences of intimidation, assault, indecency, possession of an offensive weapon (a metal bar) and drug possession The report also states that the applicant has a history of poor behaviour and disrespect to custodial staff.[20][19] HB pages 634-643.[20] Ibid at page 638. A previous Pre-Release report dated 11 August 2020 prepared by Community Corrections Taree,[21] states that at the time the report was prepared, the applicant had been the subject of multiple Segregations and Special Management Area Placements which had made his placement in correctional facilities very difficult. The report also stated that during that period of custody to which the report related the applicant had accrued 27 institutional misconducts due to drugs, violence, intimidation and weapons, only two of which had occurred in the previous 18 months. [21] HB pages 617-626. Documents concerning the applicant’s conduct in custody are at HB pages 645-673. The 17 December 2024 Pre-Release Report states that to date the applicant had not completed any offence targeted programs. He was referred to the EQUIPs Foundation Aggression, and Addiction programs on 11 September 2024, but these programs were yet to commence. The report states that while in custody the applicant has been compliant with his opioid treatment program. He completed three modules in the NEXUS 3 program in February 2022, but said he did not want to complete further modules due to feelings on increased stress. In addition, in June 2023, the applicant completed a Core Skills Assessment in Language, Literacy and Numeracy, a CPI Skills Check and a course in Mandatory Safety. The report states that the applicant has been employed in the following capacities while in prison:·As a general hand between 22 December 2021 and 4 January 2022;·As a cleaner between 11 August 2023 and 2 January 2024; and ·As a general and a lead hand in food services between 27 February 2024 and 15 July 2024. The report states that the applicant has demonstrated ‘a poor work ethic and lack of enthusiasm when employed’, that he has received negative case notes for his consumption of food without permission and the need for him to be regularly reminded to complete tasks.[22][22] HB page 639. Legislative framework