Ruru and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 2005

Ruru and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2005 (19 September 2025)
Applicant/s:  Ruru
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4250

Tribunal:Senior Member T Tavoularis
Place:Brisbane
Date of Decision: 19 September 2025
Date of Written Reasons: 7 October 2025

Decision: Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision made by a delegate of the Respondent dated 25 June 2025 to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

........................[SGD]........................
Senior Member T Tavoularis

Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct – whether conduct engaged in constituted family violence - the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed - decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7
PNLB and Minister for Immigration and Border Protection [2018] AATA
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Direction No 110 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Migration Regulations 1994 (Cth)
Statement of Reasons
INTRODUCTION

The Applicant’s Class TY Subclass 444 Special Category (Temporary) visa[1] was, pursuant to s 501(3A) of the Migration Act (1958) Cth,[2] mandatorily cancelled on 13 December 2023. By a decision made on 25 June 2025,[3] the Respondent-Minster’s delegate refused to revoke the mandatory cancellation. The Applicant now seeks merits review in this Tribunal of the refusal-to-revoke decision.
[1] Hereinafter referred to as “the visa.”
[2] Hereinafter referred to as “the Act.”
[3] Hereinafter referred to as the “decision under review.”
AN IMPORTANT PROCEDURAL ASPECT OF THIS MATTER
This is an expedited application pursuant to s 500(6L)(c) of the Act. That section requires the Tribunal to make a decision in this application within the period of 84 days after the day on which the Applicant was notified of the decision under review. As mentioned earlier, the instant hearing proceeded before me on 4 September, 2025. The 84^th day in this matter fell on 19 September 2025.
This left insufficient time for the preparation of properly detailed written reasons from the conclusion of the hearing to the occurrence of the 84^th day. I therefore caused the Tribunal to make…

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.

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Details

AGLC: Ruru and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2005
Case: [2025] ARTA 2005
Decision Date: 19 September 2025

CaseChat Overview and Summary

In the case of Ruru versus Minister for Immigration and Citizenship, the primary issue before the court was whether the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa should be revoked. The applicant, who had failed the character test, argued that there were other reasons to justify the revocation of the cancellation decision. The court had to consider various factors including the protection of the Australian community from criminal conduct, the applicant's ties to Australia, and the best interests of her minor children. The court was also required to examine the extent of impediments that would be caused by the applicant's removal.

The court applied Ministerial Direction No. 110 to weigh various primary and other considerations. The primary consideration was the protection of the Australian community from criminal or other serious conduct. The court examined the nature and seriousness of the applicant's conduct, which included acts of family violence, and the risk she posed if further offences were committed. The court also assessed the strength, nature, and duration of the applicant's ties to Australia, including her family and social links. These ties were found to be significant, particularly the impact on her immediate family members and children. The court concluded that these ties, combined with the other considerations, did not provide sufficient grounds to revoke the mandatory cancellation decision.

The court found that the applicant's conduct, while serious, did not outweigh the other considerations. The primary consideration of protecting the Australian community remained paramount. The court also found that the applicant's removal would cause significant hardship to her family, particularly her children, but this did not constitute a sufficient reason to revoke the mandatory cancellation. The court affirmed the decision of the Minister not to revoke the mandatory cancellation of the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The subsequent paragraph 8.3(2) also stipulates that in the assessment of any other ties that a non-citizen may have in Australia, the decision-maker must have regard to:a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. The evidence around the Applicant’s ties to Australia. During the instant Hearing, I requested that the Tribunal be provided with a list of relevant people in Australia in respect of whom the Applicant could claim to now have ties. That list was provided to the Tribunal (for which it is grateful) and it comprises these people (with specific names redacted):Parents: Mr IR – Father Ms CR – Mother Siblings: Mr JR – Brother Mr RKR – Brother Mr NR – Brother Ms JR – Sister. Applicant’s Children: Child AHR, born April 2017 – Daughter Child ZR, born August 2020 – Son Nieces and nephews: MR (1)LRVRMR (2)Cousins: SRShRKRAunt and Uncle: EN PMHRJR (deceased) Social: Pastor Gillian (Church) Belinda – Children’s Christian Learning - Teacher. Pastor Jenine (Senior Pastor)Paragraph 8.3(1): Assessment of ties to immediate family members The material contains supportive statements from both of the Applicant’s parents and each of her four siblings. It can be safely accepted that each of these six people would be adversely impacted in the event of the Applicant’s removal to New Zealand. This finding is predicated on the basis that each of those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely. The Applicant’s ties to immediate family members in Australia most certainly militate in favour of the allocation of heavy weight in her favour pursuant to this Primary Consideration 3.This weight is augmented by her ties to her two abovementioned biological children comprising Child AHR and Child ZR. Those ties have been impacted as a result of the Applicant serving time in prison and then immigration detention since September 2023 and by the reality that those children are primarily parented by their grandparents – that is, – the Applicant’s parents via Court-ordered parenting orders. Overall, I will find that the Applicant’s ties with the nominated immediate family members comprising her parents, four siblings and two infant children militate in favour of a heavy level of weight in her favour pursuant to this Primary Consideration 3. To repeat, this finding is predicated on the limiting proviso that each of the people representing these immediate ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.Paragraph 8.3(2)(b) Assessment of ties to extended family and social links

Decision

Reasons for decision

A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s visa.DECISION Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 25 June 2025 to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

Ratio Decidendi

Legal Principle Established

Before I move to a consideration of each of those primary and other considerations as may be relevant to the instant facts, I will note (and find) – consistent with the positions of the parties expressed in either their written and / or oral submissions and based on my own understanding of the material before me - that Other Consideration (c) (impact on Australian business interests) is not relevant to determination of the instant application.PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:a)the nature and seriousness of the non-citizen’s conduct to date; andb)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct I will consider each in turn.The nature and seriousness of the Applicant’s conduct to date When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:i.violent and/or sexual crimes;ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;d) the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;e) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;f) the cumulative effect of repeated offending;g) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;h) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).i) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.