Silva Rodriguez and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1174

Silva Rodriguez and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1174 (31 July 2025)
Applicant:Cristian Adolfo Silva Rodriguez
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3976

Tribunal:Senior Member Hon J Rau SC
Place:Adelaide
Date:31 July 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that cancellation of the Applicant’s visa is revoked.

..................[SGND]...................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class BB Subclass 155 Five Year Resident Return visa under section 501(3A)- where Applicant does not pass the character test– Applicant has substantial criminal record – whether the original visa cancelation under section 501CA(4) should be revoked – consideration of Ministerial Direction No. 110 - decision under review is set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).
REASONS FOR DECISION
Senior Member Hon J Rau SC
31 July 2025
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 2 June 2025,[1] not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa (“the Visa”). The Visa was cancelled on 30 October 2024 under section 501(3A) on the basis that he did not pass the character test.[2]
[1] Exhibit 1: Hearing Bundle (‘HB’), 16-36.
[2] Ibid.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction on 18 October 2024 for various offences and sentence of 12 months imprisonment.[3]
[3] HB 38.
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to section 501CA(4)(b)(ii) of the Act.
The hearing was held on 28 and 29 July 2025. The Applicant was represented by Mr Mark Northam of Northam Lawyers and the Respondent was represented by Mr Alvin Sharma of HWL Ebsworth Lawyers.
The Applicant gave evidence by Teams from Villawood Detention Centre. The Applicant presented in a very direct and open manner. He presented as a credible witness. He made appropriate concessions when cross-examined. I formed the impression that he is sincere in both his…

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: Silva Rodriguez and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1174
Case: [2025] ARTA 1174
Decision Date: 31 July 2025

CaseChat Overview and Summary

In the matter of Silva Rodriguez, the Applicant contested the decision of the Minister for Immigration and Citizenship to cancel his visa under section 501(3A) of the Migration Act 1958 (Cth). The Applicant, born in Chile and a long-term resident of Australia, faced the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa due to failing the character test. The Tribunal was tasked with determining whether the original visa cancellation should be revoked, considering the principles outlined in Ministerial Direction No. 110.

The central legal issue was whether the Applicant's substantial criminal record warranted the revocation of the mandatory visa cancellation. This involved assessing the seriousness of his criminal conduct against the principles and considerations outlined in Direction No. 110, particularly the protection of the Australian community and the expectation that non-citizens who engage in serious criminal conduct should not remain in Australia. The Tribunal had to balance the Applicant's extensive criminal history against his long-term residence in Australia and his familial ties, particularly with his elderly mother who relies on his support.

The Tribunal found that the Applicant's criminal conduct, including acts of family violence, drink driving, and driving while disqualified, was of a serious nature and warranted a mandatory cancellation of his visa. The Tribunal noted that while the Applicant had lived in Australia for most of his life and had familial ties, the gravity of his criminal conduct did not allow for a revocation of the visa cancellation under the principles set out in Direction No. 110. Consequently, the Tribunal decided that the original decision to cancel the Applicant's visa should stand.

The Tribunal ordered that the decision under review be set aside and substituted with the original decision to cancel the Applicant’s visa. This outcome reflects the Australian Government's commitment to protecting the community from serious criminal conduct by non-citizens, even in cases where the individual has significant ties to Australia.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant’s mother, Ms ER, gave evidence by phone, with the assistance of a Spanish interpreter. She has provided a statement in support.[9] She is aged 77 and has various health problems including diabetes, osteoporosis, pulmonary fibrosis and high blood pressure. She is an Australian citizen.[10] The Applicant would live with her and assist her in her daily life if he were to return to the community. She was understandably very distressed at the prospect of the Applicant being removed from Australia.[9] HB 96.[10] HB 97.Background Facts The Applicant was born in Chile on 22 April 1986. He is a Chilean citizen.[11][11] HB 57. The Applicant came to Australia as a 10-month-old infant on 24 February 1987.[12] He came here with his parents and his older sister, Ms RW.[13][12] Ibid.[13] HB 47, 71. In 1995, when the Applicant was about 9 years old, his parents separated. He then had no contact with his father for about a decade after that. In about 2013, his father reconnected with him. They have had some relationship since then. The Applicant’s father moved back to Chile late last year. They are not close. The Applicant is currently unsure of his father’s exact whereabouts. The Applicant attended school to the end of year 10. He worked for 4 years as an apprentice painter and decorator until August 2006, when he resigned due to the travel requirements of the job.[14] The Applicant has generally been employed as a Painter and Decorator for most of his life.[14] HB 203. On 4 January 2004, the Applicant’s nephew, DW, was born.[15][15] HB 75. On 19 September 2006, the Applicant was convicted of a drink driving offence. He was fined $500 and disqualified from driving for 6 months until 19 March 2014.[16][16] HB 39, 200. On 6 October 2006, the Applicant was involved in an altercation with police. The police fact sheet states:“Approximately 10:25pm on the 6th of October 2006, Police attended the Canley Height Sporting and RSL Club in relation to an altercation between a group of patrons and security staff. On arrival Police observed a group of 4 males who appeared moderately intoxicated, they were in the carpark of the pub shouting and behaving in a general rowdy and disruptive manner.Constable [redacted] has asked this group of male persons to leave the location on 4 seperate occasions. They refused to do so because they claimed they had been assaulted by security staff. All of these persons showed no signs of any visible injury. Senior Constable [redacted] informed these individuals that they had to leave the location due to their intoxication and behaviour. He informed them that if they wished to make a complaint of assault, they could do so at the Police Station when they were no longer under the effect of alcohol. Senior Constable [redacted] had to ask the group 3 times to leave before they slowly moved to the edge of the carpark, and once again stood their ground.Senior Constable [redacted] has advised the group to leave the area. At this point the accused Christian RODRIGUEZ has raised his voice and said "How about you fuck off, you mother fuckers". This was said within hearing of patrons who would have been in the carpark of the club at the time. It was Friday night, and there were a large number of patrons exiting and entering their vehicles.The accused was placed under arrest, cautioned and conveyed to Fairfield Police Station. The accused was apologetic for his actions and appeared genuinely remorseful. He was able to produce photo identification, in the form of a NSW driver's licence. He was issued Field Court Attendance Notice number 647471 for the matter now before the Court. All safeguards under LEPRA were complied with.”[17][17] HB 186.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must therefore consider whether “there is another reason why the original decision should be revoked”.Is there another reason why the original decision should be revoked under section 501CA(4)? In considering whether to the original decision should be revoked, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. 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”) has application.[67] [67] On 21 June 2024, the former applicable direction, Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 110. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:(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 measurable 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. However, 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.(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 noncitizen’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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

Ratio Decidendi

Legal Principle Established

The Applicant’s adult offending commenced in 2006.[70] Out of an abundance of caution, I have had no regard to the Applicant’s juvenile offending. Even if I were to consider it, it would make no material difference in the context of the rest of the Applicant’s adult offending.[70] HB 37-39.Primary Consideration 1 – Protection of The Australian Community In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the safety of the Australian community is the highest priority of the Australian Government. To that end, the 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 applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to: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.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 a number of factors. I will now turn to addressing these considerations. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community. The Applicant has committed acts of family violence as set out above. These are very serious. The Applicant’s record for drink driving and driving when disqualified is also very serious. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.