Tutunoa and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1408

Tutunoa and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1408 (18 August 2025)
Applicant:Uaealesi Tutunoa
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3814
Tribunal:General Member K Thornton
Place:Melbourne
Date:18 August 2025
Decision:The Tribunal affirms the decision under review.

..................[SGD].................
General Member K Thornton
Catchwords
MIGRATION – Non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) of the mandatory cancellation of Applicant’s Class TY (subclass 444) Special Category visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – family violence offending – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Secondary Materials
Australian Government, Australian Institute of Health and Welfare, ‘Family, domestic and sexual violence’ ‘Intimate partner violence’ website updated 30 July 2025
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, dated 7 June 2024
Statement of Reasons
INTRODUCTION

The Applicant is a 44-year-old citizen of New Zealand. He seeks review of a decision made by the delegate of the Respondent not to revoke the mandatory cancellation of his Class TY (subclass 444) Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
For the following reasons, the Tribunal affirms the decision under review.
RELEVANT LEGISLATION
Section 501(3A) of the Act provides that the Minister 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.
Section 501(6)(a) provides that, for the purposes of this section, a person does not pass the character test if the person has a ‘substantial criminal record’ (as defined by s 501(7)). Section 501(7)(c) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person. Section 501CA(4) provides that the Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another…

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: Tutunoa and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1408
Case: [2025] ARTA 1408
Decision Date: 18 August 2025

CaseChat Overview and Summary

The case involves Tutunoa, an individual with a history of family violence offences, who challenged the non-revocation decision made by a delegate of the Minister for Immigration and Citizenship under section 501CA(4) of the Migration Act 1958 (Cth). The Applicant, born in New Zealand and raised in Australia, was granted a Class TY (subclass 444) Special Category visa. However, his visa was cancelled following his sentencing for family violence offences, which led to his appeal and subsequent re-sentencing. The Tribunal was tasked with reviewing the non-revocation decision of the Applicant’s visa cancellation.

The central legal issues the Tribunal had to decide were whether the Applicant passed the character test under section 501CA(4)(b)(i) of the Act, and if not, whether there was another reason to revoke the cancellation decision under section 501CA(4)(b)(ii). The Tribunal had to evaluate the Applicant’s personal circumstances and representations, including his rehabilitation efforts and family ties in Australia, against the principle of protecting the Australian community.

The Tribunal found that the Applicant did not pass the character test, as his criminal history and the nature of his offences were too severe. In considering whether there was another reason to revoke the cancellation decision, the Tribunal applied the terms of Direction 110, focusing on the protection of the Australian community. It weighed the Applicant’s personal circumstances, his efforts towards rehabilitation, and his strong ties to his family in Australia. Despite these factors, the Tribunal concluded that the risk posed to the community by the Applicant’s past conduct was too significant to warrant revoking the cancellation decision. The Tribunal upheld the non-revocation decision, affirming the delegate’s decision.

The final orders of the Tribunal were to dismiss the Applicant's application for review of the non-revocation decision, thereby affirming the original decision not to revoke the mandatory cancellation of his visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Paragraph 9(1) contains the other considerations. That paragraph provides that the other considerations must also be taken into account, where relevant, in accordance with their provisions. The other 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.PERSONAL BACKGROUNDArrival into Australia and visa history The Applicant was born in New Zealand in 1981. He arrived in Australia at age five with his parents and siblings.[1] He has two adult children (a son and a daughter) who each reside in Australia. His parents and siblings still reside in Australia.[2] [1] Exhibit R1, 47, 190.[2] Ibid 154. On 19 March 2019, the Applicant was granted a Class TY (subclass 444) Special Category (Temporary) visa.[3][3] Ibid 191. On 30 March 2023, the Applicant was sentenced in the Local Court of New South Wales at Burwood for various family violence offences. He was sentenced to an aggregate term of four years imprisonment with a non-parole period of three years.[4] The Applicant appealed the severity of this sentence.[4] Ibid 60. On 11 October 2023, the District Court of New South Wales allowed the appeal and re-sentenced the Applicant to an aggregate term of two years imprisonment with a non-parole period of 12 months.[5][5] Ibid 57. On 15 March 2024, the Applicant’s visa was mandatorily cancelled under s 501(3A) by a delegate of the Respondent on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Act because he had been sentenced to a term of imprisonment of 12 months or more.[6] [6] Ibid 191. On 23 April 2024, the Applicant made representations seeking revocation of the cancellation decision.[7][7] Ibid 135-140. On 28 May 2025, a delegate of the Respondent decided under s 501CA(4) not to revoke the original cancellation decision (‘the non-revocation decision’).[8][8] Ibid 23. On 29 May 2025, the Applicant was notified of the non-revocation decision.[9][9] Ibid 50. On 30 May 2025, the Applicant lodged an application for review of the non-revocation decision with the Tribunal.[10][10] Ibid 6.TRIBUNAL HEARING On 7 August 2025, a Tribunal hearing was held by video at the Melbourne Registry. The Applicant represented himself during the proceedings and appeared by video from immigration detention. The Respondent also appeared by video and was represented by Mr Simon Knuckey from HWL Ebsworth.Documentary evidence At the hearing the Tribunal received into evidence a combined Hearing Book as Exhibit R1 totalling 495 pages of material. The Hearing Book contained the following documents:(a)G-documents totalling 252 pages;(b)Respondent’s Statement of Facts, Issues and Contentions dated 10 July 2025;(c)The Applicant’s documents comprising:(i)A letter of apology and personal plea from the Applicant dated 20 July 2025;(ii)Statutory Declaration from the Applicant’s adult daughter dated 23 July 2025;(iii)A letter of support from the Hillsong Church dated 30 July 2025;(d)Respondent’s Evidence Bundle comprising:(i)Extract of documents produced under summons by the Burwood Local Court;(ii)Extract of documents produced under summons by the Downing Centre District Court;(iii)Extract of documents produced under summons by the New South Wales Department of Corrective Services; and(iv)Extract of documents produced under summons by the Parramatta Local Court.Oral evidence

Evidence

Evidence Before The Court

At the hearing the Tribunal received into evidence a combined Hearing Book as Exhibit R1 totalling 495 pages of material. The Hearing Book contained the following documents:(a)G-documents totalling 252 pages;(b)Respondent’s Statement of Facts, Issues and Contentions dated 10 July 2025;(c)The Applicant’s documents comprising:(i)A letter of apology and personal plea from the Applicant dated 20 July 2025;(ii)Statutory Declaration from the Applicant’s adult daughter dated 23 July 2025;(iii)A letter of support from the Hillsong Church dated 30 July 2025;(d)Respondent’s Evidence Bundle comprising:(i)Extract of documents produced under summons by the Burwood Local Court;(ii)Extract of documents produced under summons by the Downing Centre District Court;(iii)Extract of documents produced under summons by the New South Wales Department of Corrective Services; and(iv)Extract of documents produced under summons by the Parramatta Local Court.Oral evidence During the Tribunal hearing, the Applicant gave evidence by video. Prior to giving evidence, the Applicant was advised about his privilege against self-incrimination. He indicated to the Tribunal that he understood that privilege. The Applicant also called evidence from the following witnesses:(a)His adult daughter;(b)His adult niece; and (c)His mother. A summary of the oral evidence given at the Tribunal hearing follows.The Applicant The Applicant told the Tribunal that he is deeply regretful about his behaviour. He said he knows he has caused a lot of trouble for everyone and does not put the blame on anyone but himself. The applicant said he is trying to find better ways to deal with challenges that don’t lead to alcohol. He told the Tribunal that alcohol is not a problem for him anymore. He said he has done alcohol education courses and behaviour courses which has helped him. He said if he is released into the community, he plans to undertake a men’s behaviour change program. He said that his daughter recently gave birth to her first child, which was his first grandchild. He has met the grandchild twice whilst in immigration detention. He wants to do better for them and do better for his daughter. He told the Tribunal he wants to repair the damage he has caused to his family. The Applicant told the Tribunal he wants to be around for his elderly parents. He gave evidence that his mother is on dialysis and his father is not doing well. He said whilst in detention he has been trying to improve himself by gardening, training in the gym, eating healthy and engaging in programs. In terms of his rehabilitation, he has done some drug and alcohol courses, and courses on emotions. He has learnt better ways to deal with his emotions, such as meditation and breathing exercises, which have helped him a lot. He told the Tribunal he has been in Australia since he was five years old. He completed a Certificate IV in Hospitality and has been a chef for 27 years at multiple clubs in New South Wales. He said all his friends and family are in Australia, and he has no one in New Zealand. His sisters live here and each of them have children. His eldest niece (who also gave evidence on his behalf) is his goddaughter and he said they are very close.

Decision

Reasons for decision

The Tribunal therefore finds that the Applicant does not pass the character test. Accordingly, he cannot rely on s 501CA(4)(b)(i) as a basis to revoke the cancellation decision. Second issue: Is there another reason why the cancellation decision should be revoked? The remaining issue to be determined is whether there is ‘another reason’ why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act. In order to determine this issue, the Tribunal is required to undertake an assessment of the representations put forward by the Applicant.[13] The Tribunal is required to read, identify, understand and evaluate the representations and must bring its mind to bear upon the facts stated in them or the arguments and opinions put forward and appreciate who is making them.[14] The weight to be afforded to the representations is a matter for the decision-maker.[15][13] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 589 [22].[14] Ibid [24].[15] Ibid. The Tribunal will apply the terms of Direction 110 in determining whether there is another reason why the cancellation decision should be revoked. PRIMARY CONSIDERATIONSPrimary consideration one: Protection of the Australian community Paragraph 8.1 of Direction 110 states:(1)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 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.(2)Decision-makers should also 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 Tribunal has had regard to the matters set out at paragraph 8.1(1). The Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal has had particular regard to the principle 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. The Tribunal has considered the matters identified at paragraph 8.1(2) of Direction 110, which are dealt with below.The nature and seriousness of the conduct Paragraph 8.1.1(1) of Direction 110 sets out the factors that decision-makers must have regard to when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date.

Ratio Decidendi

Legal Principle Established

The Tribunal will apply the terms of Direction 110 in determining whether there is another reason why the cancellation decision should be revoked. PRIMARY CONSIDERATIONSPrimary consideration one: Protection of the Australian community Paragraph 8.1 of Direction 110 states:(1)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 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.(2)Decision-makers should also 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 Tribunal has had regard to the matters set out at paragraph 8.1(1). The Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal has had particular regard to the principle 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. The Tribunal has considered the matters identified at paragraph 8.1(2) of Direction 110, which are dealt with below.The nature and seriousness of the conduct Paragraph 8.1.1(1) of Direction 110 sets out the factors that decision-makers must have regard to when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Paragraph 8.1.1(1)(a) provides that without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community. They are:i.violent and/or sexual crimes;ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed. Paragraph 8.1.1(1)(b) identifies a non-exhaustive list of crimes or conduct that are considered serious by the Australian Government and the Australian community. They include crimes committed against vulnerable members of the community (such as the elderly or disabled), or government representatives or officials due to the position they hold or in the performance of their duties.[16][16] Direction 110, 8.1.1(1)(b)(ii).