TSXN and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 329

TSXN and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 329 (5 March 2025)
Applicant:TSXN
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10739
Tribunal:Senior Member Hon J Rau SC
Place:Adelaide
Date:05 March 2025
Decision:The Tribunal affirms the decision under review.

.................[sgnd]..........................................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – refusal to grant a Protection (Class XA) visa under section 501(1)- where Applicant does not pass the character test – Applicant has substantial criminal record (rape) – family violence – Applicant in the community on a Bridging Visa – whether the discretion to refuse to grant the visa under section 501 (1) should be exercised – consideration of Ministerial Direction No. 110 – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
CKL21 v Minister for Home Affairs (2022) FCAFC 70
FYBR v Minister for Home Affairs [2019] FCA 50
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
CKL21 v Minister for Home Affairs (2022) FCAFC 70
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
05 March 2025
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501(1) of the Migration Act 1958 (Cth) (“the Act”) on 12 December 2024, to refuse to grant him a Protection (Class XA) visa (“the Protection Visa”). The Protection Visa application was refused on the basis that he did not pass the character test.
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 having been convicted of rape in the Melbourne County Court on 9 September 2011 and sentenced to 5 years imprisonment.[1]
[1] Exhibit 4: G-Documents, 33.
The Applicant concedes that he does not pass the character test.[2] The issue before the Tribunal is therefore, whether the discretion to refuse to grant the Protection Visa pursuant to s 501 (1) of the Act, should be exercised. In doing so, the Tribunal must have regard to Direction 110.
[2] Ibid 270.
The hearing was held on 24, 25 and 28 February 2025. The Applicant was represented by Mr Jamie Blaker of Victoria Legal Aid and the Respondent was represented by Mr David Brown of the Australian Government Solicitor.
The Applicant, his witnesses and the legal representatives of the parties attended in person at the Melbourne Registry…

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: TSXN and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 329
Case: [2025] ARTA 329
Decision Date: 5 March 2025

CaseChat Overview and Summary

The matter before the court involved an application by TSXN, a non-citizen residing in Australia on a Bridging Visa, seeking to be granted a Protection (Class XA) visa. The Minister for Immigration and Multicultural Affairs had refused to grant the visa, citing the applicant's criminal history and failure to pass the character test under section 501(1) of the Migration Act 1958. The applicant's criminal record included a conviction for rape and other offences, and the case also involved considerations of family violence. The primary legal issue was whether the discretion to refuse to grant the visa should be exercised in light of the applicant's substantial criminal record and the need to protect the Australian community.

The court examined the relevant provisions of the Migration Act and the applicable Ministerial Direction No. 110, which provides guidelines for the exercise of the Minister's discretion in cases involving character grounds for refusal of a visa. The court noted that the Direction required that protection of the Australian community generally be given greater weight than other primary considerations, and that crimes of a sexual nature and family violence are viewed very seriously. The court also considered the various primary and other considerations outlined in the Direction, weighing them against the applicant's specific circumstances. Given the seriousness of the applicant's criminal history and the risk of reoffending, the court found that the risk was at least moderate, and that this powerfully engaged the Direction's priority of protecting the Australian community.

Based on the court's analysis, it determined that the refusal to grant the Protection Visa should be upheld. The court emphasised that even a small risk of repetition of such serious conduct would be unacceptable, and that the inherent seriousness of the applicant's conduct engaged the Direction's priority of protecting the Australian community. The court acknowledged that the refusal would mean the applicant would remain in the community on a Bridging Visa, subject to more restrictive conditions and with greater uncertainty than if he held a Protection Visa. However, the court concluded that the need to protect the Australian community outweighed these other considerations. The decision to refuse to grant the Protection Visa was therefore affirmed.

In summary, the court upheld the Minister's decision to refuse to grant a Protection Visa to the applicant on character grounds, given the applicant's substantial criminal record, including convictions for rape and family violence. The court's reasoning was based on the need to protect the Australian community, as prioritised by the relevant Ministerial Direction, and the moderate risk of reoffending posed by the applicant. The decision to refuse the visa was affirmed, and the applicant remained in the community on a Bridging Visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There was no evidence on this topic, so this Other Consideration is neutral.CONCLUSION It is necessary to weigh up all of the primary and other considerations. Primary consideration 1 weighs very heavily against revocation. Primary consideration 2 weighs very heavily against revocation. Primary consideration 3 weighs slightly in favour of revocation. Primary consideration 4 weighs slightly in favour of revocation. Primary consideration 5 weighs very heavily against revocation. Other consideration (a) weighs in favour of revocation. Other consideration (b) is neutral. Other consideration (c) is neutral.[138][138] Find in the above paragraphs. I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations. I note that paragraph 8.1.1(1) of the Direction states that crimes of a sexual nature against women and family violence are viewed very seriously by the Australian Government and the Australian community. It is necessary to weigh up all of the primary and other considerations. This case is unusual in that the Tribunal’s decision in this matter will not change the Applicant’s capacity to remain in the community, at least for the immediately foreseeable future. That situation could, however, change either for the better or the worse from the Applicant’s perspective, perhaps with little notice. Relevant factors may include, but are not limited to, changes in the Australian Government or the responsible Minster and decisions yet to be made by the courts. There is also the unknown attitude of as yet unspecified foreign sovereign governments, to any possible future request from the Australian Government, to issue a visa to the Applicant. A refusal to grant the Protection Visa in this matter, would see the Applicant remaining in the community for the time being, albeit subject to the conditions of his Bridging visa. I accept that these conditions are more restrictive than the conditions that would apply if he held the Protection Visa. I also accept that the Bridging visa has a more temporary quality than the Protection Visa. I accept that the Bridging visa would result in greater uncertainty for the Applicant and his links in our community, than would the Protection Visa. This is discussed in some detail above. The Applicant’s offending has been very serious. Even a small risk of any repetition of such conduct would in my view, be unacceptable. In this case I have assessed that risk as being at least moderate, for the reasons set out above. This assessment powerfully engages the Direction’s priority of protecting the Australian community. This is the highest priority of the Australian Government. I also note that the Direction states;(9)“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

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