Singh and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 1953

Singh and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1953 (22 September 2025)

Applicant/s:  Dilpreet Singh

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/4252

Tribunal:Deputy President Burford

Place:Perth

Date of decision:                 22 September 2025

Date of written reasons:     1 October 2025

Decision:The Tribunal affirms the decision under review.

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

Deputy President

Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of bridging A visa – character test – Direction no. 110 – fraud convictions – Applicant is a 29-year-old citizen of India – Applicant has applied for COVID-19 visa – Non-Revocation Decision is affirmed

Legislation

Migration Act 1958 (Cth) ss 15, 36, 36A, 15, 189, 196, 197C, 197D, 198, 198AD, 198AE, 199B, 499, 501, 501(1), 501(3A), 501(6), 501(7), 501CA(3), 501CA(4), 501F, 501E, 503

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

Khalil and Minister for Home Affairs [2019] FCAFC 151

Minister for Home Affairs v HSKJ [2018] FCAFC 217

Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47

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

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

Secondary Materials

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) paras 2, 3, 5, 6, 8, 9

Statement of Reasons

The decision in this matter was made and provided to the parties on 22 September 2025 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]

THE APPLICATION

[1] Khalil and Minister for Home Affairs [2019] FCAFC 151 [41].

  1. The Applicant seeks review of a decision of a delegate of the Minister for Immigration and Citizenship under section 501CA(4) of the Migration Act1958 (Cth) not to revoke the mandatory cancellation of the Applicant’s Bridging A (subclass 010) visa. That visa was cancelled on 22 July 2024 under s 501(3A) of the Migration Act.[2]

    [2] Exhibit T1, page 206.

    BACKGROUND

  2. The Applicant is a 29-year-old citizen of India. He first arrived in Australia on 3 July 2015 at the age of 18 on a Student visa.[3] On 25 March 2022 he applied for a Temporary Activity (subclass 408) COVID-19 Pandemic Event visa (COVID-19 visa),[4] and was granted a Bridging A visa on 13 April 2022.[5] He has returned…

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Details
AGLC
Singh and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1953
Case
[2025] ARTA 1953
Decision Date

CaseChat Overview and Summary

The Applicant, a 29-year-old citizen of India, sought review of a decision by the Minister for Immigration and Citizenship not to revoke the mandatory cancellation of his bridging A visa. The Applicant was convicted of fraud and sentenced to three years' imprisonment, which led to the cancellation of his visa under section 501(3A) of the Migration Act. He applied for a COVID-19 visa and requested the Minister to revoke the cancellation decision, which was refused. The Applicant sought judicial review of this decision before the Administrative Appeals Tribunal.

The primary legal issue was whether the Applicant passed the character test as defined in section 501(6) of the Migration Act. If he did not, the Tribunal had to determine whether there was another reason to revoke the cancellation decision. The Tribunal also had to consider the relevant provisions of Direction no. 110 issued by the Minister under section 499 of the Migration Act.

The Tribunal found that the Applicant did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more. As a result, the statutory power to revoke the cancellation decision could only be exercised if there was another reason to do so. The Tribunal considered the primary and other considerations set out in Direction no. 110 and weighed them against the Applicant's case. The Tribunal ultimately decided that there was no other reason to revoke the cancellation decision.

The Tribunal affirmed the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Tribunal found that the Applicant did not pass the character test due to his criminal record. While considering Direction no. 110, the Tribunal concluded that there were no other reasons to revoke the cancellation decision, given the seriousness of the Applicant's criminal conduct and the need to protect the Australian community.

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

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.[15] 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.[16] [15] Migration Act s 501CA(3).[16] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].THE HEARING AND THE EVIDENCE The hearing was conducted via video at the Tribunal’s Perth Registry on 8 and 9 September 2025. The hearing was assisted by an interpreter who was fluent in the English and Punjabi languages. The Applicant was represented by Dr Jason Donnelly, instructed by Zarifi Lawyers. The Respondent was represented by Ms Caitlin White of Minter Ellison. All parties appeared by video. The Applicant gave evidence and was cross-examined at the hearing. The Tribunal also took evidence from Dr Jacqui Yoxall, forensic psychologist. The Applicant and Dr Yoxall appeared by video. I admitted the following documents into evidence: (a)Joint hearing bundle filed 29 August 2025 (Exhibit T1); (b)Report of Dr Yoxall, dated 29 August 2025 (Exhibit A1). The hearing bundle included the following submissions:(a)The Applicant’s Statement of Facts, Issues and Contentions, dated 6 August 2025 (Applicant’s SFIC); and(b)The Respondent’s Statement of Facts, Issues and Contentions, dated 20 August 2025 (Respondent’s SFIC).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, [17] Migration Act s 501(7)(c).[18] 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’.[17] Failure to pass the character test arises as a matter of law.[18] The Applicant conceded he did not pass the character test.[19] [19] Applicant’s SFIC [6], Exhibit T1, page 361. As noted above, on 21 June 2024 the Applicant was convicted in the Brisbane District Court of a number of offences including ‘Fraud to the value in excess of $100,000’, for which he was sentenced to 3 years’ imprisonment.[20][20] Exhibit T1, page 44. As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act. Accordingly, I am not satisfied that the Applicant passes the character test.[21][21] 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.[22] [22] Migration Act s 501CA(4)(b)(ii).

Decision

Reasons for decision

On 8 July 2025, the Applicant applied to the Tribunal for review of the decision made on 27 June 2025 not to revoke the cancellation of his visa.[13] That is the reviewable decision before me.[13] Exhibit T1, page 1. 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 cecision should be revoked.[14][14] See s 501CA(4) of the Migration Act. For the reasons outlined below, I have decided that the Applicant does not pass the character test. Further, having considered all the circumstances of the Applicant’s case and having weighed the relevant matters in Direction no. 110, I have decided that there is not another reason why the cancellation decision should be revoked. Accordingly, I have decided that the decision under review should be affirmed. 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.) Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain persons if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months. Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 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.[15] 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.[16] [15] Migration Act s 501CA(3).[16] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].THE HEARING AND THE EVIDENCE

Ratio Decidendi

Legal Principle Established

Accordingly, I am not satisfied that the Applicant passes the character test.[21][21] 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.[22] [22] 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.[23] 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.[24] [23] 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].[24] 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.[25][25] 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.[26] 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.[27][26] Direction no. 110 para 5.1(4). [27] 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 are:[28] ·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.[28] 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):[29] ·the legal consequences of the decision;·the extent of impediments if removed; and·the impact on Australian business interests. [29] 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. The principles set out in paragraph 5.2 of Direction no. 110 ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’. Those principles highlight that the safety of the Australian community is the government’s highest priority, and that Australia has a right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. They stress that entering or remaining in Australia is a privilege conferred in those individuals will be law-abiding, will respect Australia's law enforcement framework, and will not harm members of the community. The principles state that the community expects the government to cancel visas of individuals whose conduct raises serious character concerns regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.