MIGRATION – non-revocation of mandatory cancellation of Special Category (Temporary) (Class TY) (Subclass 444) visa – s 501CA(4) of the Migration Act 1958 (Cth) – where applicant convicted of knowingly deal with proceeds of crime – low risk of reoffending established – strength, nature and duration of ties to Australia established – best interests of minor children in Australia established – decision under review set aside and substituted.
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION
The applicant seeks review of a decision by a delegate of the respondent under s 501CA(4) of the Migration Act 1958 (Cth) (Act), not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY) (Subclass 444) visa (visa).
The application is made pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act.
The application was heard September 2025. At the hearing Ms Baw of counsel appeared for the applicant and Mr C Burke of Sparke Helmore Lawyers appeared for the respondent. The applicant and his lay witnesses gave evidence with the assistance of an interpreter in the Somali and English languages.
For the following reasons the Tribunal has decided to set aside the decision under review.
BACKGROUND
Applicant’s background
The applicant was born in Mogadishu, Somalia on 6 June 2006 and is currently 27 years of age. He was aged 4 when he, his parents and siblings migrated to New Zealand. He became a citizen of New Zealand on 23 February 2007. He and his family moved to Australia in 2008, when the applicant was ten years old.
He resides with his parents and seven siblings in Western Sydney.
The applicant’s offending history
On 25 August 2023, the applicant was convicted in the Downing Centre District Court of five counts of knowingly deal with proceeds of crime intent to conceal-SI and he was sentenced to an aggregate sentence of 4-years’ imprisonment with a minimum non parole period of 2 years following the entering of a guilty plea, commencing on 2 May 2023 and expiring on 1 May 2025.[1]
[1] G Documents G6/41-43.
On 1 May…
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
Saeed and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1794
Case
[2025] ARTA 1794
Decision Date
CaseChat Overview and Summary
The case of Saeed and Minister for Immigration and Citizenship revolves around the non-revocation of a mandatory cancellation of a Special Category (Temporary) visa under section 501CA(4) of the Migration Act 1958 (Cth). Saeed, a citizen of New Zealand who migrated to Australia at the age of 10, was convicted of knowingly dealing with the proceeds of crime. His visa was subsequently cancelled, and he applied for the revocation of this cancellation. The Tribunal was required to decide whether there were compelling reasons under section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa.
In reaching its decision, the Tribunal considered several factors, including the risk of Saeed reoffending, his ties to Australia, and the best interests of his minor children residing in Australia. Evidence presented by Saeed, including his remorse for the crimes committed, his commitment to rehabilitation, and the support he receives from his family and community, was pivotal. The Tribunal also took into account expert opinions indicating that Saeed's risk of reoffending was low and that his prospects of successful rehabilitation were very good. The Tribunal accepted that Saeed's criminal conduct, while serious, did not outweigh the other considerations, particularly his strong ties to Australia and the welfare of his children.
The Tribunal concluded that the decision to not revoke the cancellation was not in the best interests of justice. It found that the risk of Saeed reoffending was low, his ties to Australia were strong, and the best interests of his minor children would be served by allowing him to remain in Australia. Consequently, the Tribunal set aside the decision under review and substituted it with a decision to revoke the mandatory cancellation of Saeed's visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the following reasons the Tribunal has decided to set aside the decision under review.BACKGROUNDApplicant’s background The applicant was born in Mogadishu, Somalia on 6 June 2006 and is currently 27 years of age. He was aged 4 when he, his parents and siblings migrated to New Zealand. He became a citizen of New Zealand on 23 February 2007. He and his family moved to Australia in 2008, when the applicant was ten years old. He resides with his parents and seven siblings in Western Sydney. The applicant’s offending history On 25 August 2023, the applicant was convicted in the Downing Centre District Court of five counts of knowingly deal with proceeds of crime intent to conceal-SI and he was sentenced to an aggregate sentence of 4-years’ imprisonment with a minimum non parole period of 2 years following the entering of a guilty plea, commencing on 2 May 2023 and expiring on 1 May 2025.[1][1] G Documents G6/41-43. On 1 May 2025, at the conclusion of his period of imprisonment, the applicant was taken into immigration detention and transferred to Villawood Detention Centre. Visa cancellation and review On 17 January 2024, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. On 14 February 2024, the applicant made representations seeking revocation of the cancellation. On 25 June 2025, a delegate of the respondent made a decision not to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4), and he was notified of the decision on the same day. On 26 June 2025, the applicant applied to the Tribunal seeking merits review of the delegate’s decision.JURISDICTION The Tribunal has jurisdiction to review a decision under s 501(1), where the application for review is lodged within one day after the decision is notified: s 500(6B). In this case, the application for review of that decision was lodged on 26 June 2025, one day after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the application. EVIDENCE AND SUBMISSIONS In deciding in relation to the application, the Tribunal has considered:(a)The applicant’s bundle of documents;(b)The respondent’s bundle of documents;(c)The “G documents”;(d)The hearing bundle referred to as Joint Tender Bundle (JTB);(e)The oral evidence given by the applicant and his witnesses; and(f)The opening and closing oral submissions made on behalf of the parties. All documents are included in the JTB. The applicant’s witnesses were:·His father, Ahmed Mohamud Mohamed;·Mr Watson-Munro, Clinical Psychologist;·His mother, Deeka Shireh Mohamed;·His 20 year old brother; Izhak Ahmed Mohamoud;·His employer, Ahmed El-Mir;·Sheikh Ahmed Farah, community religious leader;·Shakur Ogle Wais, committee member of the Islamic Centre;·Shadi Chebib, the applicant’s boxing coach;·Gohkan Singek, youth worker and counsellor Auburn Youth Centre; Relevant parts of the oral evidence and submissions are considered below. LEGISLATIVE FRAMEWORK Section 501 of the Act deals with decisions to refuse or cancel a visa on character grounds. Relevantly to this case:(a)Section 501(2) states that the Minister may cancel a visa if the person does not satisfy the Minister that the person passes the character test. (b)Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record; and (c)Section 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Evidence
Evidence Before The Court
The Tribunal has jurisdiction to review a decision under s 501(1), where the application for review is lodged within one day after the decision is notified: s 500(6B). In this case, the application for review of that decision was lodged on 26 June 2025, one day after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the application. EVIDENCE AND SUBMISSIONS In deciding in relation to the application, the Tribunal has considered:(a)The applicant’s bundle of documents;(b)The respondent’s bundle of documents;(c)The “G documents”;(d)The hearing bundle referred to as Joint Tender Bundle (JTB);(e)The oral evidence given by the applicant and his witnesses; and(f)The opening and closing oral submissions made on behalf of the parties. All documents are included in the JTB. The applicant’s witnesses were:·His father, Ahmed Mohamud Mohamed;·Mr Watson-Munro, Clinical Psychologist;·His mother, Deeka Shireh Mohamed;·His 20 year old brother; Izhak Ahmed Mohamoud;·His employer, Ahmed El-Mir;·Sheikh Ahmed Farah, community religious leader;·Shakur Ogle Wais, committee member of the Islamic Centre;·Shadi Chebib, the applicant’s boxing coach;·Gohkan Singek, youth worker and counsellor Auburn Youth Centre; Relevant parts of the oral evidence and submissions are considered below. LEGISLATIVE FRAMEWORK Section 501 of the Act deals with decisions to refuse or cancel a visa on character grounds. Relevantly to this case:(a)Section 501(2) states that the Minister may cancel a visa if the person does not satisfy the Minister that the person passes the character test. (b)Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record; and (c)Section 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1). In this case, “Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (the Direction) applies. For the purposes of deciding whether to refuse an application for a visa or whether to revoke the mandatory cancellation of a visa, 5.2 of the Direction sets out several principles that must inform the decision-maker’s application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision. These principles are:(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 measureable 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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Decision
Reasons for decision
The Tribunal has had regard to the report of Dr Richard Furst, forensic psychiatrist, prepared for the purpose of sentencing before the District Court. The report is dated 11 August 2023 and opines that the applicant’s adjustment disorder has resolved and that his gambling and drug problems have also resolved and are in remission. Dr Furst states that the applicant has never suffered from an alcohol disorder as he did not drink, other than occasionally on weekends. This is supported by the applicant’s oral sworn evidence given at the hearing. Dr Furst concludes that the applicant has received positive counselling and mentorship through his community elders, including a sheikh and a youth worker. He reports that the applicant’s parents are good role models and are supportive. Whilst Dr Furst was not directly asked to report on the applicant likelihood of recidivism or the risk of re-offending, Dr Furst concludes that the applicant has accepted his guilt, regrets his offending, has removed himself from pro-criminal associates and no longer gambles or uses drugs. His family are supportive and he is in full time employment. It is the expert’s opinion there is every likelihood that the applicant will maintain his current mental health, employment and family connections in the future and not relapse into gambling, drug use, and/or related criminal offending. Overall the expert is of the opinion that the applicant has good prospects of being successfully rehabilitated.Conclusion in relation to protection of the Australian community It is not in dispute that the offence of knowingly deal with the proceeds of crime with intent to conceal is serious. There is no doubt that should the applicant again engage in conduct similar to the offence, the resulting harm to an individual and more broadly to the Australian community through that individual’s family, friends and associates is likely to have serious consequences. In relation to the risk of the applicant re-offending, the Tribunal accepts that the applicant feels remorse for the crimes he committed and that he is very intent on not re-offending. The Tribunal accepts that he has matured in the six years since the offending occurred and that his state of mind in 2025 is not the same as his state of mind was in 2019. Mr Saeed was 21 at the time and his relative youth was strongly considered by the sentencing court. The Tribunal accepts that the applicant no longer takes drugs or gambles, no longer has contact with co-offenders or other associates who were a bad influence on him and has a positive attitude towards receiving ongoing treatment from his social worker and youth counsellor. The Tribunal further accepts that the applicant has excellent family support, including from his parents and seven siblings, who are committed to supporting him and putting protective measures in place with a view to ensuring that he does not re-offend. The Tribunal also accepts the evidence of Mr Singhek, Mr Chebib, Sheikh Farah that the applicant is committed to his Muslin faith and that he has the support of his Western Sydney Islamic Centre community. Based on the evidence given by the applicant, his parents, his mentors and supporters, as well as the psychologist Mr Watson-Munro and the psychiatrist Dr Furst, the Tribunal accepts that the applicant’s commitment to rehabilitation and to not re-offending is genuine and not reactive to the applicant’s current visa status. The Tribunal accepts the opinion expressed by Mr Watson-Munro that the risk of the applicant re-offending is continuing to trend from moderate to low, and currently closer to low. The Tribunal has considered the opinions of Mr Rababi and Dr Furst, that the risk of the applicant re-offending is low and that his prospects of being successfully rehabilitated are very good.
Ratio Decidendi
Legal Principle Established
Accordingly, the determinative issue for the Tribunal is whether there is another reason under s 501CA(4)(b)(ii) of the Act why the original decision should be revoked. In determining whether there is ‘another reason’, the Tribunal must have regard to the primary and other considerations set out in Direction 110.CONSIDERATIONPrimary considerationsProtection of the Australian community from criminal or other serious conduct – 8.1 In accordance with 8.1(1) of the Direction, in considering the protection of the Australian community, the Tribunal has had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. The Tribunal has also considered 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. As required by 8.1(2) of the Direction the Tribunal has considered:(a)the nature and seriousness of the applicant’s conduct; and(b)the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.Nature and seriousness of the applicant’s conduct - 8.1.1 The Tribunal has first considered the nature and seriousness of the applicant’s conduct being the offences outlined above. On 25 August 2023, the applicant was convicted of five counts of knowingly deal with proceeds of crime intent to conceal-SI and he was sentenced to 4-years’ imprisonment. The applicant’s offending commenced around May 2019 when he was recruited into a significant money laundering sting, by which the applicant and his co-offenders gained unauthorised access to the email accounts of businesses and used these compromised email accounts to issue legitimate invoices with altered bank account details to the clients and vendors of those businesses. The enterprise also ran a romance scam wherein the victims would commence an online romantic relationship with a fictitious person, who would then obtain money from the victims. The applicant’s role in the operation was to organise the transfer and dispersal of funds, as well as recruiting new account holders to take part in the operation. The scheme defrauded its victims of a total of $1,691,000, of which only $264,000 was recovered. The respondent submits that the applicant’s offending should be considered serious. The applicant was involved in a sophisticated criminal enterprise defrauding its victims of a significant amount of money. Further, the fraud was not limited to companies but included preying on individuals through romance scams and defrauding them of money. While the applicant did not source the money, the sentencing judge noted that he was an “indispensable element” and was involved in the transfer of substantial amounts of money from the schemes and he occupied a “highly valued role”. Further, as the applicant’s counsel conceded at sentencing, and the sentencing judge found, the applicant was clearly motivated by greed. While the applicant’s offending is not within the list of serious offences in the Direction, that list is not exhaustive, and it is clear that the applicant’s offending involving obtaining significant funds fraudulently is serious.