Syahab and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1606

Syahab and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1606 (27 August 2025)
Applicant/s:  Abdullah Fikri Syahab
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4009

Tribunal:General Member R Cameron
Place:Melbourne
Date:27 August 2025

Decision:The Tribunal affirms the decision under review.

...................................[SGD]...................................
General Member R Cameron
Catchwords
MIGRATION – Applicant a citizen of Indonesia – Class WA, Subclass 010, Bridging A visa cancelled – convicted of sexual assault and rape by compelling sexual penetration – applicant did not pass the character test – whether the discretion under s 501CA(4)(b) of the Migration Act 1958 to revoke the cancellation decision should be exercised – Direction No. 110 – protection of the Australian community – nature and seriousness of offending – serious offending – sexual crimes – risk to Australian community – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – decision affirmed.
Legislation
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)
Cases
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
FYBR v Minister for Home Affairs (2019) 272 FCR 454
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
Plaintiff M2/21 v Minister for Home Affairs (2022) 275 CLR 582
Secondary Materials
Minister for Immigration, Multicultural Affairs, Migration and Citizenship, Direction No 110: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (21 June 2024)
Department of Foreign Affairs and Trade, COUNTRY INFORMATION REPORT INDONESIA, July 2023
CAST, “Indonesia’s revised criminal code rolls back civil rights and liberties, drawing widespread criticism”, December 14, 2022
Human Rights Watch, “Indonesia: New Criminal Code Disastrous for Rights”, December 8, 2022
H & A Partners, “Indonesia’s regulatory update on the new Criminal Code”, January 16, 2023
Statement of Reasons
INTRODUCTION

The applicant seeks a review of a decision made by a delegate of the respondent of 10 June 2025 not to revoke the mandatory cancellation of his Class WA Subclass 010 Bridging A visa (“the visa”) under s 501CA(4) of the Migration Act 1958 (“the Act”) (“the reviewable decision”).
The applicant is a citizen of Indonesia. He arrived in Australia on 22 December 2021.
THE APPLICANT’S REPRESENTATION AT THE HEARING OF THE APPLICATION
The applicant was jointly represented by his husband Mr Johnson and a friend Ms Murch, a close friend of both the applicant and Mr Johnson. Ms Murch has known Mr Johnson most of her life and is clearly an extremely close friend of his. She has known the applicant since approximately September 2019 when she was then residing in Bali, Indonesia writing a book. It is fair to say, that she has known the applicant from almost the beginning of his relationship with Mr Johnson.
It should be observed that neither Mr Johnson, nor Ms Murch are legally qualified. This factor was taken into account…

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: Syahab and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1606
Case: [2025] ARTA 1606
Decision Date: 27 August 2025

CaseChat Overview and Summary

Syahab, an Indonesian citizen, faced visa cancellation under the Migration Act 1958 due to convictions for sexual assault and rape by compelling sexual penetration. The Tribunal was tasked with determining if the Minister's discretion under section 501CA(4)(b) to revoke the cancellation should be exercised. The primary consideration was whether the applicant passed the character test, with additional factors such as the nature and seriousness of the offences, the risk to the Australian community, and the strength of ties to Australia, among others, also being weighed. The case hinged on interpreting Direction No. 110, which mandates consideration of the protection of the Australian community, and applying it to the specific facts of the applicant's case.

The central legal issues were whether the applicant satisfied the character test under section 501(3A) of the Migration Act and, if not, whether there was another reason to revoke the visa cancellation decision. The Tribunal needed to balance the seriousness of the applicant's criminal offences against his ties to Australia and the expectations of the Australian community. The primary consideration, as per Direction No. 110, was the protection of the Australian community, which generally held more weight than other factors. The Tribunal also had to consider the risk of the applicant reoffending and the impact of his removal on the Australian community and his family.

After reviewing the evidence and applying the relevant legal principles, the Tribunal determined that the applicant did not pass the character test due to his criminal convictions. The nature and seriousness of the offences, particularly sexual crimes involving compelling sexual penetration, weighed heavily against him. The risk to the Australian community, should the applicant reoffend, was significant. Although the applicant had ties to Australia, including a family, the Tribunal found that these ties did not sufficiently outweigh the need to protect the Australian community. Consequently, the Tribunal decided not to exercise the discretion to revoke the visa cancellation decision. The Tribunal upheld the Minister's decision, affirming that the protection of the Australian community was paramount in this instance.

The final orders affirmed the Minister's decision to cancel the applicant's visa and did not revoke the cancellation. The Tribunal's decision was based on the applicant's failure to pass the character test and the serious nature of his criminal offences, which posed a risk to the Australian community. The Tribunal emphasised the importance of the primary consideration of community protection as per Direction No. 110. The applicant's ties to Australia, while noted, were not deemed sufficient to override the significant public interest in preventing further criminal conduct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Throughout the hearing Ms Murch was the predominant advocate for the applicant. Notwithstanding that she is not legally qualified and had on her own admission, limited exposure to courts and legal process, she did perform particularly well in advocating for the applicant and his interests.THE EVIDENCE BEFORE THE TRIBUNAL There was both documentary and oral evidence before the Tribunal. The following witnesses gave oral evidence:(a)The applicant;(b)The applicant’s husband Mr Johnson;(c)Ms Gildea;(d)Mr Gildea; and (e)Ms Murch. In terms of documentary evidence, the “G” documents and Supplementary “G” documents were tendered and received in evidence. Additionally, a “Hearing Book” (“HB”), which was a compilation of other documents, was before the Tribunal. As the Tribunal informed the parties at the commencement of the hearing of the application, it also referred to the DFAT “Country Information Report Indonesia” (24 July 2023.) Some applicable paragraphs of that Country Information Report will be referred to later in these reasons.THE RELEVENT SECTIONS OF THE MIGRATION ACT Section 501(3A) of the Act specifies that the Minister (or their delegate) must cancel a visa that has been granted to a person if:(a) the Minister is satisfied that the person does not pass the character test because of the operation of:(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii) paragraph (6)(e) (sexually based offences involving a child); and(b) the person is 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. The character test prescribed by s 501(3A)(a) is set out in s 501(6) of the Act. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1][1] Migration Act 1958 (Cth), s 501(7)(c). Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction that the Tribunal as decision maker must apply, made by the Minister on 7 June 2024, is Direction No. 110 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’).[2][2] Direction 110 commenced on 21 June 2024.ISSUES BEFORE THE TRIBUNAL

Decision

Reasons for decision

Paragraph 6 “Making a decision” provides that informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision. Paragraph 7 “Taking the relevant considerations into account” provides that:(a)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.(b)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.(c)One or more primary considerations may outweigh other primary considerations. Paragraph 8 “Primary considerations”, provides that in making a decision under, amongst others, s 501CA (4), the following are primary considerations:(d)protection of the Australian community from criminal or other serious conduct;(e)whether the conduct engaged in constituted family violence;(f)the strengths, nature and duration of ties to Australia;(g)the best interests of minor children in Australia;(h)expectations of the Australian community. Paragraph 9 “Other considerations”, provides that in making a decision under, amongst others, s 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):(a)legal consequences of the decision;(b)extent of impediments if removed;(c)impact on Australian business interests.PARAGRAPH 8.1 OF DIRECTION 110 – PROTECTION OF THE AUSTRALIAN COMMUNITY Paragraph 8.1(1) of Direction 110 provides that when considering protection of the Australian community, decision-makers should keep in mind that 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that 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. Paragraph 8.1(2) of Direction 110 provides that decision-makers should also give consideration to:(a)the nature and seriousness of the non-citizen’s conduct to date; and(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.Paragraph 8.1.1 of Direction 110 – The nature and seriousness of the applicant’s conduct Paragraph 8.1.1(1) of Direction 110 mandates that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to several factors, amongst others, including the following: (a)without limiting the range of conduct that may be considered very serious, amongst other things, the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community include:(i)violent and/or sexual crimes;(ii)crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed; and(iii)acts of family violence, regardless of whether there is a conviction for an offence or 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:(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;(c)with the exception of crimes or conduct mentioned in subparagraph (a) (ii), (a) (iii) or (b) (i) 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 isa, 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.The applicant’s offending

Ratio Decidendi

Legal Principle Established

As the Tribunal informed the parties at the commencement of the hearing of the application, it also referred to the DFAT “Country Information Report Indonesia” (24 July 2023.) Some applicable paragraphs of that Country Information Report will be referred to later in these reasons.THE RELEVENT SECTIONS OF THE MIGRATION ACT Section 501(3A) of the Act specifies that the Minister (or their delegate) must cancel a visa that has been granted to a person if:(a) the Minister is satisfied that the person does not pass the character test because of the operation of:(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii) paragraph (6)(e) (sexually based offences involving a child); and(b) the person is 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. The character test prescribed by s 501(3A)(a) is set out in s 501(6) of the Act. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1][1] Migration Act 1958 (Cth), s 501(7)(c). Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction that the Tribunal as decision maker must apply, made by the Minister on 7 June 2024, is Direction No. 110 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’).[2][2] Direction 110 commenced on 21 June 2024.ISSUES BEFORE THE TRIBUNAL There is sufficient evidence before the Tribunal to demonstrate that the applicant has made representations to the respondent in compliance with s 501CA(4)(a) of the Act.[3] [3] See, G9 to G15, for details of the representations made by the applicant to the respondent which were considered by the delegate of the respondent prior to making the reviewable decision. That material has also been read and considered by the Tribunal. Therefore, two issues remain for determination by the Tribunal as follows:(a)whether the applicant passes the character test; and(b)if he does not, whether there is another reason why the decision to cancel the visa should be revoked.THE CHARACTER TEST