TYJK and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1146

TYJK and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1146 (29 July 2025)
Applicant/s:  TYJK
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/3466

Tribunal:Senior Member S Thode
Place:Sydney
Date:29 July 2025
Decision:The Tribunal affirms the decision under review.

.......................[SGD].................................................
Senior Member S Thode
Catchwords
MIGRATION –s 501(1) of the Migration Act 1958 (Cth) – where the applicant does not pass the character test - whether there are other reasons why the decision to cancel the visa should be revoked –serious persistent offending – family violence - Direction no. 110 considered - where applicant arrived as adult – impediments to removal where applicant is not subject to a protection finding
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 43
FHHM v Minister for Immigration [2022] FCAFC 19
Suleiman v Minister for Immigration [2018] FCA 594
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

The applicant seeks review of a decision made on 2 May 2025 not to revoke the cancellation of the Class WA Subclass 010 Bridging A visa on the basis that the applicant does not pass the character test: s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The application was heard on 15 and 16 July 2025. At the hearing the applicant was self-represented and Ms C Warren of Sparke Helmore Lawyers appeared for the respondent. The applicant gave evidence with the assistance of an interpreter in the Malay and English languages.
For the following reasons the Tribunal has decided to affirm the decision under review.
BACKGROUND
Background
The applicant was born in Malaysia on 16 April 1987. He arrived in Australia on 18 October 2018 on a visitor visa and applied for a protection visa on 7 January 2019. The protection visa application was refused on the basis that the delegate did not find that the applicant was a person in respect of whom Australia owed protection obligations. On 15 June 2019 the applicant applied for a review of the decision to the Administrative Appeals Tribunal (the AAT). The application for review was heard by the AAT on 15 August 2024. The applicant appeared and gave evidence. The AAT affirmed the decision under review.[1] The applicant has sought review of the AAT’s decision by the Federal Circuit and Family Court of Australia. That application has not yet been determined.
[1] G documents 505
The applicant was granted a Bridging R (subclass 070) visa (BVR), which came into effect after the review of the decision of the delegate to refuse a protection visa was affirmed.
According to the information contained in the application for a protection visa, the applicant is a 37-year-old Malaysian citizen. He indicated he was born in Nerang where he resided until October 2018. He indicated he is of Malay ethnicity and…

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: TYJK and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1146
Case: [2025] ARTA 1146
Decision Date: 29 July 2025

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia reviewed the decision of the Administrative Appeals Tribunal (AAT) to affirm the cancellation of the applicant’s visa. The applicant, a Malaysian national, arrived in Australia in October 2018 and subsequently applied for a protection visa which was refused. After the AAT affirmed the refusal, the applicant was granted a Bridging R (subclass 070) visa (BVR). The Minister for Immigration and Citizenship subsequently cancelled the BVR under section 501(1) of the Migration Act 1958 (Cth), finding that the applicant did not pass the character test due to a substantial criminal record. The applicant sought to have the visa cancellation decision revoked, but the AAT affirmed the decision, leading to the applicant’s application for judicial review.

The central legal issue before the Federal Circuit and Family Court was whether the Tribunal should exercise its discretion to revoke the mandatory cancellation of the applicant’s visa under section 501CA of the Migration Act. The court considered the principles outlined in Direction No 110, particularly those relating to the protection of the Australian community from criminal or other serious conduct. The applicant's violent history, including domestic violence and resisting arrest occasioning actual bodily harm, was critically assessed alongside his potential for rehabilitation and the risk he posed to the community if his visa were revoked.

The court found that the applicant’s violent conduct was of significant concern and highlighted the serious nature of the crimes committed in the presence of his children. Despite the applicant's arguments for rehabilitation, the court was not convinced of his genuine remorse or commitment to not reoffending. The applicant's admission that he lacked control over his violent tendencies when angry indicated a high risk of reoffending. The court also noted that the applicant's family environment did not act as a significant deterrent to his criminal behavior. Consequently, the court upheld the AAT’s decision to affirm the cancellation of the applicant’s visa, finding that the protection of the Australian community from the risk of further serious offending outweighed any other considerations.

In conclusion, the Federal Circuit and Family Court of Australia upheld the decision to affirm the mandatory cancellation of the applicant’s visa. The court found that the serious nature of the applicant’s criminal conduct, particularly the violent offenses committed in the presence of his children, posed a significant risk to the Australian community. The applicant’s lack of genuine remorse and commitment to rehabilitation further supported the decision. Therefore, the visa cancellation was affirmed, and the application for judicial review was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons the Tribunal has decided to affirm the decision under review.BACKGROUNDBackground The applicant was born in Malaysia on 16 April 1987. He arrived in Australia on 18 October 2018 on a visitor visa and applied for a protection visa on 7 January 2019. The protection visa application was refused on the basis that the delegate did not find that the applicant was a person in respect of whom Australia owed protection obligations. On 15 June 2019 the applicant applied for a review of the decision to the Administrative Appeals Tribunal (the AAT). The application for review was heard by the AAT on 15 August 2024. The applicant appeared and gave evidence. The AAT affirmed the decision under review.[1] The applicant has sought review of the AAT’s decision by the Federal Circuit and Family Court of Australia. That application has not yet been determined. [1] G documents 505 The applicant was granted a Bridging R (subclass 070) visa (BVR), which came into effect after the review of the decision of the delegate to refuse a protection visa was affirmed. According to the information contained in the application for a protection visa, the applicant is a 37-year-old Malaysian citizen. He indicated he was born in Nerang where he resided until October 2018. He indicated he is of Malay ethnicity and Muslim. He declared his occupation to be a ‘businessman’. The applicant stated that in December 2005 he joined the Royal Malaysia police (RMP) . He then worked as a bodyguard with CEM securities in Kuala Lumpur from January 2015 He met his current wife at the airport in Melbourne in October 2018 upon his arrival in Australia. He was 31 years of age at the time of his arrival. The applicant is married with three children, two girls, currently four and five years of age. His wife, Ms Y, has an eight year old adopted son who also forms part of the applicant’s family unit. After his arrival in Australia he worked as a spray painter of kitchen cabinets for some time. He has also worked as a delivery driver. His offending commenced after about three years in the Australian community.The applicant’s offending history The applicant was convicted of his first offence on 3 August 2021. The applicant was convicted of common assault (DV)-T2 and he was fined $750 and sentenced to a two-year community correction order. According to the NSW Police Facts Sheet, the offending occurred on 10 July 2021, when the applicant was in bed on a Saturday afternoon after working a shift as an Uber Eats driver. The applicant’s wife, Ms Y, sat down with their daughter, N, and began questioning the applicant about whether he had been cheating on her the night before. The argument became heated and the applicant pushed Ms Y to the ground, kicked her in the back, and punched her three or four times in front of N. Ms Y settled N on the bed and walked out, but the applicant grabbed her by the arm and tried to pull her back into the room. Ms Y broke free and lost balance, running into a glass door. The applicant grabbed Ms Y and threw her to the ground, covering her mouth as she tried to scream. The applicant then took Ms Y back to the bedroom. Significantly, the offending occurred in the presence of both of their children.

Evidence

Evidence Before The Court

The Tribunal has jurisdiction to review a decision not to revoke the mandatory cancellation of his Bridging (Class WA)(subclass010) visa. In this case, the application for review of that decision was lodged on 9 May 2025, which is within nine days after the decision was notified on 6 May 2025. The Tribunal therefore has jurisdiction to hear and determine the application. EVIDENCE AND SUBMISSIONS In deciding in relation to the application, the Tribunal has considered:(a)The tender bundle of documents – Exhibit A(b)The statement of Ms Y; Exhibit B(c)The statement of Mohammad Ali - Exhibit C(d)The statement of Syed Sazwan Bin Syed Abd Rahman - Exhibit D All documents other than Exhibits B, D and D are included in the joint tender bundle, Exhibit A. The applicant’s witnesses were:·His wife, Ms Y;·His former employer, Mr Mohammad Ali. Relevant parts of Exhibit A that have been considered as forming part of the applicant’s evidence as they were included by the Minister in the G documents, pp 75 - 203. Those documents were tendered by the applicant as part of his submission to the Minister in support of his revocation request dated 20 November 2023. The Tribunal has taken those documents into account. LEGISLATIVE FRAMEWORK Section 501 of the Act deals with decisions to refuse or cancel a visa on character grounds. Relevantly to this case:(a)Section 501(1) states that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. (b)Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record; and (c)Section 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1). 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) applies. For the purposes of deciding whether to refuse an application for a visa or whether to revoke the mandatory cancellation of a visa, 5.2 of the Direction sets out several principles that must inform the decision-maker’s application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision. These principles are:(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 measureable 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. (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 non-citizen'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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.

Decision

Reasons for decision

The Tribunal has had regard to the submission of the applicant’s former lawyers. Mr Panwala states that his client, as a former policeman, understands law enforcement ‘and the security and safety of people’. It is submitted on behalf of the applicant, in the submission to the Minister, that “[the applicant] intends to do the right thing by the community”. However, this submission is inconsistent with the applicant’s oral evidence and the Tribunal accordingly places little weight on it. Conclusion in relation to protection of the Australian community The Tribunal is satisfied that that the applicant’s assault on his wife and the offence of resist arrest occasioning actual bodily harm in respect of the police officer constitutes very serious violent offending. There is no doubt that should the applicant again engage in conduct similar to the domestic violence offence and the resist arrest offence, the resulting harm to a domestic partner, or an officer in the course of the exercise of his/her duty and more broadly to the Australian community is likely to be very serious in terms of emotional, physical and psychological damage. In relation to the risk of the applicant re-offending, based on the applicant’s oral evidence, the Tribunal does not accept that the applicant feels remorse for the crimes he committed or that he is committed to not re-offending. The Tribunal does not accept that the applicant is rehabilitated in respect of his drug use and notes in particular the applicant’s evidence that he only takes drugs to stay awake when at work as a delivery driver. The Tribunal does not accept that his family has provided a significant protective factor as some of the offending occurred while the applicant was a husband and father and whilst he was cohabitating with Ms Y. Based on the applicant’s written and oral evidence the Tribunal does not accept that the applicant is committed to rehabilitation or that his commitment to not reoffending is sustained or genuine. He concerningly stated in oral evidence that “when men get angry they cannot control themselves” which indicates to the Tribunal that he takes no responsibility for his actions, nor does he rule out that his violent offending could occur again. The Tribunal accepts and prefers the opinion expressed in the pre-sentence report that the risk of the applicant reoffending is medium and that in giving her professional opinion about the risk of reoffending, the officer expressed considerable concern about the applicant’s lack of insight and his continued denial concerning the violent offending against his wife. In assessing the likelihood of the applicant engaging in further criminal or other serious conduct, 8.1.2(2) of the Direction requires the Tribunal to take into account not only information and evidence on the risk of the applicant reoffending, but also evidence of rehabilitation achieved by the time of the decision. In doing so, the Tribunal is to give weight to time spent in the community since the applicant’s most recent offence. In this case, the applicant has been in prison and in immigration detention where he remains.

Ratio Decidendi

Legal Principle Established

The issue to be determined is therefore whether the discretion to revoke the cancellation of the Class WA Subclass 010 Bridging visa previously held by the applicant should be exercised, taking into account relevant considerations in the Direction. CONSIDERATIONProtection of the Australian community from criminal or other serious conduct – 8.1 In accordance with 8.1(1) of the Direction, in considering the protection of the Australian community, the Tribunal has had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. The Tribunal has also considered 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. As required by 8.1(2) of the Direction, the Tribunal has considered:(a)the nature and seriousness of the applicant’s conduct; and(b)the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.Nature and seriousness of the applicant’s conduct - 8.1.1 Paragraph 8.1.1 of Direction 110 sets out the factors to which decision-makers must have regard when considering the nature and seriousness of the applicant’s criminal offending or other serious conduct. The Direction provides that 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 Tribunal has taken particular notice of the violent offending of the applicant. On 3 August 2021, the applicant was convicted of common assault (DV)-T2 and he was fined $750 and sentenced to a two-year community correction order (G6). According to the NSW Police Facts Sheet, the offending occurred on 10 July 2021, when the applicant was in bed on a Saturday afternoon after working a shift as an Uber Eats driver. The applicant’s wife, Ms Y, sat down with their daughter, N, and began questioning the applicant about whether he had been cheating on her the night before. The argument became heated and the applicant pushed Ms Y to the ground, kicked her in the back, and punched her three or four times in front of N. Ms Y settled N on the bed and walked out, but the applicant grabbed her by the arm and tried to pull her back in. Ms Y broke free and lost balance, running into a glass door. The applicant grabbed Ms Y and threw her to the ground, covering her mouth as she tried to scream. Significantly, the offending occurred in the presence of both of their children. On 17 March 2022, the applicant was convicted of contravene prohibition/restriction in AVO (Domestic) and he received a s 10A conviction with no other penalty. The offending occurred on 16 March 2022, when NSW Police were looking for the applicant and went to Ms Y’s home. Ms Y said that the applicant was not home, but the police saw him poking his head around a wall before hiding again. The police entered the home and arrested the applicant, who claimed he had come that evening for dinner and to collect his belongings