QHXW and Minister for Immigration and Multicultural Affairs (Migration)

Case [2025] ARTA 615

QHXW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 615 (20 May 2025)

Date:20 May 2025

Applicant/s:  QHXW

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2025/1564

Tribunal:General Member J Papalia

Place:Perth

Date of decision:                 20 May 2025

Date of written reasons:     26 May 2025

Decision:The Tribunal affirms the reviewable decision. 

Statement made on 26 May 2025 at 3:29pm

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

General Member

CATCHWORDS

MIGRATION – visa cancellation – absorbed person visa – Mandatory cancellation under s 501(3A) of Migration Act 1958 – Where Applicant does not pass the character test –– Possession of CEM – Grooming - whether there is another reason to revoke cancellation – consideration of Direction no. 110 – protection of Australian community – strength, nature and duration of ties to Australia – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – Applicant is a 47-year-old citizen of NZL –– Reviewable decision affirmed – Reasons for anonymisation

LEGISLATION

Citizenship Act 1977 (NZ)

Criminal Law (Sexual Offences) Act 1978 (Qld)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Returning Offenders (Management and Information) Act 2015 (NZ)

CASES

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 94 ALJR 196

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Re CLKQ and Minister for Immigration and Multicultural Affairs [2025] ARTA 231

SECONDARY MATERIALS

Department of Corrections (NZ), FAQs for Returning Offenders (Web Page, January 2019) < align="left">Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Cth)

Helmus & Ors, ‘Static-99R: Strengths, limitations, predictive accuracy meta-analysis and legal admissibility review’, Psychology, Public Policy and Law 2022 Vol 28(3), pp 307-331 < align="center">Statement of Reasons

The decision in this matter was made on 20 May 2025 and provided to the parties with a note that written reasons would be provided within a reasonable time.[1] These are those written reasons. 

THE APPLICATION

  1. The Applicant is a 47-year-old New Zealand citizen who seeks review of a decision not to revoke the mandatory cancellation of his absorbed person visa (APV).[2] He came to Australia in September 1980, at the age of 3 with his Australian citizen father and brother.[3] Despite being eligible to apply for Australian citizenship by descent, whether by design or simply as the result of neglect, the Applicant did not do so prior to his committing offences in Queensland as an adult.[4] Because the Applicant lacks the formal legal relationship with the Australian community conferred by citizenship, he is liable to have his permission to remain in the Australian community cancelled. This occurred on 15 November 2022 as a consequence of his conviction and sentence for sexual offences.[5] The Applicant made representations seeking revocation of the cancellation of his APV, and, on 25 February 2025, the delegate of the Respondent…

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AGLC
QHXW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 615
Case
[2025] ARTA 615
Decision Date

CaseChat Overview and Summary

The case involves QHXW, a New Zealand citizen, who sought review of a decision by the Minister for Immigration and Multicultural Affairs to refuse to revoke the mandatory cancellation of their absorbed person visa under s 501CA(4) of the Migration Act 1958. The decision was made due to QHXW's failure to pass the character test, specifically due to their possession of child exploitation material (CEM) and grooming behaviour. The Administrative Appeals Tribunal (AAT) reviewed the case and found that the original decision to cancel the visa was the correct and preferable decision on the material before it. The AAT considered several factors, including the protection of the Australian community, QHXW's ties to Australia, and the legal consequences of the decision.

The central legal issue in this case was whether the AAT was correct in affirming the Minister's decision not to revoke the mandatory cancellation of QHXW's visa. The AAT had to consider whether QHXW passed the character test or if there was another reason to revoke the cancellation. In making its decision, the AAT applied Direction no. 110, which provides guidance on visa refusal and cancellation under section 501 and the revocation of a mandatory cancellation of a visa under section 501CA of the Migration Act. The AAT considered factors such as the protection of the Australian community, the strength and nature of QHXW's ties to Australia, the expectations of the Australian community, the legal consequences of the decision, and the extent of impediments if QHXW were removed.

The AAT found that the Minister's decision not to revoke the visa cancellation was the correct and preferable decision. The Tribunal considered QHXW's criminal history, which included assaulting a carer in 2000 and assaulting a police officer in 2013. Additionally, QHXW had been found in possession of CEM and had engaged in grooming behaviour with a 13-year-old child in 2018. The Tribunal determined that these factors demonstrated a need to protect the Australian community and outweighed any other considerations, such as QHXW's ties to Australia.

The AAT's reasoning was based on the principle that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal found that QHXW's past conduct and the risk of future harm to the community justified the visa cancellation. The AAT also considered the expectations of the Australian community and the legal consequences of the decision, which supported the Minister's decision to maintain the visa cancellation.

In conclusion, the AAT upheld the Minister's decision to refuse to revoke the mandatory cancellation of QHXW's visa. The Tribunal found that QHXW did not pass the character test due to their criminal history and possession of CEM, and there was no other reason to revoke the cancellation. The AAT's decision was based on the need to protect the Australian community and the risk of future harm posed by QHXW.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Informed by the principles set out in cl 5.2 of the Direction, the Tribunal must take into account the factors identified in cls 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application.[31] In this review, those factors are: (a)the protection of the Australian community from criminal or other serious conduct;(b)the strength, nature and duration of ties to Australia;(c)the expectations of the Australian community; (d)the legal consequences of the decision; and (e)the extent of impediments if removed. [31] Direction cl 6. THE HEARING AND THE EVIDENCE The Applicant appeared in-person before the Tribunal over two days on 12 and 15 May 2025. The Applicant was self-represented. The Minister was represented by Ms Taggart of counsel, instructed by Ms Rezae of Sparke Helmore Lawyers. The following documents were marked as exhibits:(a)Hearing Bundle, including the Minister’s Statements of Facts, Issues and Contentions (RSFIC) and the parties’ supporting documentary material (Exhibit 1); (b)Undated letter from the Applicant’s father provided with the Application for Review (Exhibit 2); and (c)Email from Ms Rezae regarding the Applicant’s citizenship status with annexed notification of invalid application for conferral approval dated 27 June 2024 (Exhibit 3). At the hearing, the Applicant was advised, in simple terms, of his right to invoke the privilege against self-incrimination prior to his giving evidence.[32] He was also provided an opportunity to respond to matters put to him and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under the Direction. [32] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080, [64]-[65]. The Tribunal took oral evidence from the Applicant and his father. CONSIDERATIONRepresentations in accordance with invitation Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (Regulations) prescribes that any representations seeking revocation must be made to the Minister within 28 days after the person is given notice of the mandatory cancellation under s 501CA(3)(a) of the Migration Act. As discussed at [12] above, the Applicant made representations seeking revocation of the Cancellation Decision within that timeframe. Accordingly, the Tribunal is satisfied that the Applicant made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act. Character test The Tribunal must decide whether the Applicant passes the character test as defined by [33] See Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652, [40]. See also Direction cl 5.1(3) and Annexure A. [34] See Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, [63]. s 501 of the Migration Act.[33] Failure to pass the character test arises as a matter of law.[34] Section 501(6) of the Migration Act sets out that a person does not pass the character test if(a)the person has a substantial criminal record (as defined by subsection (7)); or …(e)a court in Australia or a foreign country has: (i) convicted the person of one or more sexually based offences involving a child; or (ii) found the person guilty of such an offence, or found a charge against the person proved for such offence, even if the person was discharged without conviction;

Decision

Reasons for decision

On 25 February 2025, the Minister’s delegate refused to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (Reviewable Decision).[22] [22] Exhibit 1, p 30. The Applicant was notified of the Reviewable Decision on 26 February 2025.[23] He sought review of that decision before the Tribunal by application dated 4 March 2025.[24] [23] Evidence on 12 May 2025; Exhibit 1, pp 17, 22. [24] Exhibit 1, pp 8-21.LEGAL FRAMEWORK The question for determination by the Tribunal is whether the decision not to revoke the mandatory cancellation of the Applicant’s APV is the ‘correct or preferable decision’ on the material before the Tribunal.[25] [25] Administrative Review Tribunal Act 2024 (Cth) (ART Act) ss 9, 54, 56(1)(a); See also Shi v Migration Agents Registration Authority (2008) 235 CLR 286, [140]-[143]; Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158, 161-162. Section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and(b)the decision-maker is satisfied that:(i)the Applicant passes the character test (as defined by s 501); or(ii)there is another reason why the mandatory cancellation should be revoked. In Plaintiff M1/2021 v Minister for Home Affairs (‘M1/2021’),[26] the majority of the High Court described s 501CA(4) as conferring ‘a wide discretionary power’ to revoke a mandatory cancellation, if the decision-maker (whether the Minister, their delegate, or the Tribunal on review of a delegate’s decision) is satisfied that there is ‘another reason’ why the cancellation should be revoked.[27] The majority held in the same paragraph that the assessment of whether there was, in fact, ‘another reason’ was to be undertaken by reference to the representations made by the Applicant.[28] [26] (2022) 275 CLR 582 (M1/2021)[27] M1/2021, [22].[28] M1/2021, [22]. See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398, [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 94 ALJR 594, [6]. In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must comply with Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction)[29] given by the Minister under s 499(1) of the Migration Act.[30] [29] Direction cl 1.[30] Direction cl 5.1(4); Migration Act s 499(2A). Informed by the principles set out in cl 5.2 of the Direction, the Tribunal must take into account the factors identified in cls 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application.[31] In this review, those factors are: (a)the protection of the Australian community from criminal or other serious conduct;(b)the strength, nature and duration of ties to Australia;(c)the expectations of the Australian community; (d)the legal consequences of the decision; and (e)the extent of impediments if removed. [31] Direction cl 6. THE HEARING AND THE EVIDENCE

Ratio Decidendi

Legal Principle Established

Further guidance as to how the Tribunal is to apply the considerations in the Direction to this question can be found in cl 7, which provides that:1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.2The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. 3One or more primary considerations may outweigh other primary considerations. PRIMARY CONSIDERATIONSProtection of the Australian Community The Tribunal is required to consider whether the Australian community requires protection from harm said to have arisen from the criminal activity or other serious conduct engaged in by the Applicant to date, and from any risk of such harm arising in the future.[38] This is a two-stage process, requiring consideration of both the nature and seriousness of conduct to date, and the risk to the community if further offences are committed or the applicant engages in other serious conduct.[39] [38] See Direction cls 8(1) and 8.1. [39] Direction cl 8.1(2). In addressing this overall question, the Tribunal is directed to ‘keep in mind that the safety of the Australian community is the highest priority of the Australian Government’ and to have particular regard to the principle that 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.[40][40] Direction cl 8.1(1). Nature and seriousness of the conduct to date On 14 December 2000, the Applicant, then in his early 20s, assaulted a carer in an aged care home, causing her bodily harm.[41] This ‘very unpleasant’ and ‘bizarre’ conduct was described by the Dalby District Court in May 2001 as arising from a combination of epilepsy medication and drinking.[42] The Applicant was sentenced to 12 months’ probation and no conviction was recorded.[43] He successfully completed probation in May 2002.[44] [41] See Exhibit 1, pp 297, 300. [42] See Exhibit 1, p 300. [43] See Exhibit 1, pp 300-301. [44] Exhibit 1, p 305. In the evening of 5 September 2013, the Applicant was found by police in the vicinity of the Darby Courthouse in an intoxicated state.[45] At one stage during this interaction, the Applicant became aggressive and pushed the officers away from him, including by palming one of the officers in the face.[46] The Applicant was convicted of assaulting the officer in the performance of his duty in December 2013 and fined $300.[47] [45] See Exhibit 1, p 268[46] See Exhibit 1, pp 264, 268. [47] Exhibit 1, pp 253, 297. In late September 2018, the Applicant left his mobile telephone at the back patio of a rural property where some of his friends resided, and to which he would visit on weekends.[48] Someone present at the property opened the mobile and discovered a series of messages of a sexual nature on Instagram between the Applicant (then 41) and one of the resident children (Child A, then aged 13).[49] The Applicant had known Child A for about four or five years.[50] The mobile was eventually provided to police and the Applicant charged with involving or exposing Child A to indecent material offences, which were committed for trial in the District Court. [48] See Exhibit 1, pp 53, 195. [49] Exhibit 1, 195. [50] See Exhibit 1, pp 53, 195 [3].