QLGW and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 1954

QLGW and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1954 (11 September 2025)

Applicant/s:  QLGW

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/4158

Tribunal:Deputy President Burford

Place:Perth

Date of decision:                 11 September 2025

Decision:The decision of the delegate of the Respondent dated 18 June 2025 not to revoke the cancellation of the Applicant’s Class BF (Permanent) Transitional visa under s 501CA(4) of the Migration Act 1958 (Cth) is set aside and substituted with the decision that the cancellation of the visa is revoked.

Statement made on 11 September 2025 at 2:14pm

Catchwords

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – indecently deal with a child under 13 years – child was Applicant’s step granddaughter – strength, nature, duration of ties – no ties in home country – limited likelihood of reoffending – substantial natural protective factors include the Applicant’s age, ill health and reliance on others – extent of impediments if removed – multiple complex medical issues and longstanding care arrangements – Applicant is an 83-year-old citizen of the United Kingdom – Non-Revocation Decision is set aside – visa cancellation revoked

Legislation

Community Protection (Offender Reporting) Act 2004 (WA) s 46

Migration Act 1958 (Cth) ss 15, 189, 196, 197C, 197D, 198, 198AD, 198AE, 199B, 499, 501(3A), 501(6), 501(7)(c), 501CA, 501CA(4), 501F, 501E

Migration Reform (Transitional Provisions) Regulations 1994 (Cth)

Migration Regulations 1994 (Cth) regs 1.03, 2.20, 2.25AB, special return criterion 5001

Cases

AJL20 v Commonwealth of Australia [2020] FCA 1305

BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456

FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121

Minister for Home Affairs v HSKJ [2018] FCAFC 217

Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666

RRRB v Minister for Immigration and Multicultural Affairs [2025] ARTA 471

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Webb v Minister for Home Affairs [2020] FCA 831

Secondary Materials

Donald Ritchie, ‘Sentencing Matters: Does Imprisonment Deter? A Review of the Evidence’ (2011) Sentencing Advisory Council

Kate Obrien and Michael Daffern, ‘Treatment Gain in Violent Offenders: The Relationship Between Proximal Outcomes, Risk Reduction and Violent Recidivism’ (2017) 24(2) Journal of Psychiatry, Psychology and Law

L. Maaike Helmus et al, ‘Strengths, limitations, predictive accuracy meta-analysis and legal admissibility review’ (2022) 28(3) Psychology, Public Policy and Law

Leigh Harkins et al, ‘Relationships Between Denial, Risk, and Recidivism in Sexual Offenders’ (2014) 44(1) Archive of Sexual Behaviour

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under…

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QLGW and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1954
Case
[2025] ARTA 1954
Decision Date

CaseChat Overview and Summary

In QLGW and Minister for Immigration and Citizenship (Migration), the Applicant, an 83-year-old British citizen, sought a review of the decision by a delegate of the Minister for Immigration and Citizenship not to revoke the mandatory cancellation of his visa. The Applicant had been convicted of aggravated indecent dealing with a child under 13 years, and subsequently, his visa was cancelled under section 501CA of the Migration Act. He appealed this decision, contending that the Minister should have revoked the visa cancellation under section 501CA(4) of the Act. The Tribunal was tasked with determining whether the Applicant passed the character test under section 501(6) of the Migration Act and, if not, whether there were other reasons to revoke the visa cancellation.

The primary legal issues were whether the Applicant passed the character test and, if he did not, whether there were other compelling reasons for revoking the visa cancellation. The character test requires consideration of several factors, including whether the individual has a substantial criminal record. In this case, the Applicant had been sentenced to 14 months' imprisonment, which satisfied the criteria for a substantial criminal record. Therefore, the Tribunal found that the Applicant did not pass the character test. The secondary issue was whether there were other reasons to revoke the visa cancellation, considering the primary and other considerations outlined in Direction no. 110.

The Tribunal concluded that while sexual offences against children are serious, the Applicant's advanced age, ill health, and strong ties to Australia warranted reconsideration. The Applicant had no ties to the United Kingdom, his country of origin, and had lived in Australia for decades. His health conditions and reliance on others significantly reduced the likelihood of reoffending. Balancing these factors against the gravity of the offence, the Tribunal decided that the decision to not revoke the visa cancellation should be set aside and the cancellation revoked. The Tribunal found that the significant personal circumstances of the Applicant, including his health and lack of ties in the UK, outweighed the seriousness of the offence, leading to the visa cancellation being revoked.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[13] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.[14] [13] Migration Act s 501CA(3).[14] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].THE HEARING AND THE EVIDENCE The hearing was conducted in person at the Tribunal’s Perth Registry on 27 August 2025. The Applicant appeared in person and was represented by Louis Martin of Estrin Saul. At the time of the hearing the Applicant was detained at Yongah Hill Immigration Detention Centre and was brought to the Perth Registry for the hearing. As the Applicant has identified hearing loss, a hearing loop was made available to the Applicant during the hearing which he used at his discretion including while giving evidence. The Minister was represented by Ashley Burgess of Australian Government Solicitor. The Applicant gave evidence and was cross-examined at the hearing. The Tribunal also took evidence from the following witnesses: (a)Dr Lorraine Sheridan, psychologist; (b)Mrs K, the Applicant’s wife; (c)Mrs M, the Applicant’s stepdaughter; Dr Sheridan gave evidence by video, and Mrs K and Mrs M gave evidence in person. The Tribunal admitted the following documents into evidence: (a)A Hearing Book compiled by the Respondent and agreed upon by the parties (R1); (b)Applicant’s further bundle filed 22 August 2025 comprising 8 pages (A1). The Hearing Book included the following submissions:(a)The Applicant’s Statement of Facts, Issues and Contentions, dated 29 July 2025 (ASFIC); (b)The Respondent’s Statement of Facts, Issues and Contentions, dated 12 August 2025 (RSFIC); and (c)The Applicant’s submissions in reply, dated 19 August 2025 (Reply). DOES THE APPLICANT PASS THE CHARACTER TEST? As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case, [15] Migration Act s 501(7)(c).[16] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[15] Failure to pass the character test arises as a matter of law.[16] The Applicant conceded he did not pass the character test.[17][17] ASFIC, R1, page 150. As noted above, on 2 February 2024 the Applicant was convicted in the District Court of Western Australia of ‘aggravated indecent dealing of child under 13 in a circumstance of aggravation’, for which he received a sentence of 14 months’ imprisonment.[18][18] R1, page 38.

Decision

Reasons for decision

The Applicant made representations to the Minister requesting revocation of the visa cancellation and on 18 June 2025 a delegate of the Minister decided not to revoke the visa cancellation under s 501CA (the reviewable decision).[9] The Applicant was notified of the decision on 19 June 2025.[10][9] R1, page 22.[10] R1, page 19. On 25 June 2025, the Applicant applied to the Tribunal for review of that decision not to revoke the cancellation of his visa.[11] [11] R1, page 4. In determining the application for review, the issues for consideration are:(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the cancellation decision should be revoked.[12][12] See s 501CA(4) of the Migration Act. The Applicant’s case is not an easy one. As discussed further below, sexual offending against children is very serious, presenting a risk of serious harm to those who are among the community’s most vulnerable members. The Australian community would expect the Applicant’s visa to remain cancelled. However, there are factors limiting the likelihood of reoffending and the Applicant has strong ties to Australia. He is of advanced age and suffers from serious health conditions requiring ongoing treatment and support. He has lived in Australia for decades and has no remaining ties in the United Kingdom. Balancing the considerations in such matters is challenging. For the reasons outlined below, having considered all the circumstances of the Applicant’s case and having weighed the relevant matters raised in Direction no.110, the Tribunal has decided that the decision under review should be set aside and the cancellation of the Applicant’s visa should be revoked.VISA CANCELLATION ON CHARACTER GROUNDS The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, such as where a visa is cancelled on character grounds, that cancellation decision can be revoked by the Minister or by the Tribunal on review. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel a visa should be revoked. The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:(6)For the purposes of this section, a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7)); …(Original emphasis.) A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:(7)For the purposes of the character test, a person has a substantial criminal record if: …(c)the person has been sentenced to a term of imprisonment of 12 months or more; …(Original emphasis.)

Ratio Decidendi

Legal Principle Established

Accordingly, I am not satisfied that the Applicant passes the character test.[19][19] See Migration Act s 501CA(4)(b)(i).CONSIDERATION OF REVOCATION As I am not satisfied that the Applicant passes the character test, I must then determine whether there is another reason why the cancellation decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the cancellation decision should be revoked.[20] [20] Migration Act s 501CA(4)(b)(ii). I am required to form a state of satisfaction as to whether there is ‘another reason’ why the cancellation decision should be revoked, reasonably and on a correct understanding of the law.[21] In doing so I must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.[22] [21] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].[22] Migration Act s 499(2A).Direction no. 110 On 7 June 2024, the Minister made ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110) under s 499 of the Migration Act. Direction no. 110 commenced operation on 21 June 2024, replacing the previous Direction no. 99.[23][23] Direction no. 110 para 2-3. An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[24] In considering the exercise of the power under s 501CA(4), informed by the principles set out in paragraph 5.2 of Direction no. 110, I must take account of the primary and other considerations set out in Direction no. 110 where relevant to the decision.[25][24] Direction no. 110 para 5.1(4). [25] Direction no. 110 para 6 referring to paras 8 and 9. In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[26] ·the protection of the Australian community from criminal or other serious conduct;·family violence engaged by the Applicant (if any);·the strength, nature and duration of the Applicant’s ties to Australia; ·the best interests of minor children in Australia affected by the decision; and·the expectations of the Australian community.[26] Direction no. 110 para 8. The other considerations that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[27] ·the legal consequences of the decision;·the extent of impediments if removed; and·the impact on Australian business interests. [27] Direction no. 110 para 9. I must also take into account any other considerations or representations made by the Applicant in support of his request that the cancellation of his visa be revoked. In this case the parties agreed that the primary consideration with respect to family violence was not engaged in the Applicant’s circumstances. No other considerations outside those identified in Direction no. 110 were raised by the Applicant is support of the application.