Walker and Minister for Immigration and Multicultural Affairs (Migration)

Case [2025] ARTA 228

Walker and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 228 (11 March 2025)

Applicant/s:  Gordon Bushnell Walker 

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/10573 

Tribunal:General Member Gallagher  

Place:Perth

Date of Decision:                11 March 2025

Date of Written Reasons:    18 March 2025

Decision:On 11 March 2025, the Tribunal made the following decision.

The decision of the delegate of the Respondent dated 17 December 2024 not to revoke the cancellation of the Applicant’s Special Category (Temporary) Class TY Subclass 444 visa under s 501CA(4) of the Migration Act 1958 (Cth) is set aside and substituted with the decision that the cancellation of the Applicant’s Special Category (Temporary) Class TY Subclass 444 visa is revoked under s 501CA(4).

These are the Tribunal’s written reasons.

....................................[SGD]................................

General Member

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct  – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 56 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision is set aside

LEGISLATION

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

AJL20 v Commonwealth of Australia [2020] FCA 1305

Bartlett and Minister for Immigration and Border Protections (Migration) [2017] AATA 1561

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

FYBR v Minister for Home Affairs (2019) 272 FCR 454

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Hampton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] ARTA 35

Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 753

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121

Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32

Minister for Home Affairs v HSKJ (2018) 266 FCR 591

QJYD and Minister for Immigration, Migrant Services and Multicultural Affairs [2021] AATA 1

Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003

Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666

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

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

Tohiariki and Minister or Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 1748

VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649

YNYQ v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

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Walker and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 228
Case
[2025] ARTA 228
Decision Date

CaseChat Overview and Summary

In the case of Walker and Minister for Immigration and Multicultural Affairs (Migration), the Federal Court considered an application by a 56-year-old New Zealand citizen for the revocation of the cancellation of his visa under s 501CA of the Migration Act. The Applicant had been sentenced to two years’ imprisonment for possession of a prohibited drug with intent to sell or supply (methylamphetamine), which led to the cancellation of his visa on character grounds. The Tribunal was tasked with determining whether the Applicant passed the character test and, if not, whether there was another reason to revoke the cancellation of his visa.

The legal issues before the Tribunal were whether the Applicant passed the character test under s 501(6) of the Migration Act, and if not, whether there was another reason to revoke the cancellation of his visa. The Tribunal considered the primary and other considerations set out in Direction no. 110, which provides guidelines for decision-makers exercising powers under ss 501 or 501CA of the Migration Act. The Tribunal noted that the Applicant did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more. In considering whether to revoke the cancellation of the Applicant’s visa, the Tribunal examined the nature and seriousness of the Applicant’s criminal offending, the risk he posed to the Australian community should he commit further offences, his ties to Australia, and other relevant factors.

The Tribunal concluded that there was another reason to revoke the cancellation of the Applicant’s visa. It found that although the Applicant’s criminal offending was serious, his strong ties to Australia, his age, and the support from his family and community were significant countervailing considerations. The Tribunal determined that these factors outweighed the seriousness of his criminal conduct and the risk he posed to the Australian community. The Tribunal set aside the decision of the delegate not to revoke the cancellation of the Applicant’s visa.

In light of the Tribunal’s decision, the appropriate orders were made to revoke the cancellation of the Applicant’s visa and to direct the Minister to take such steps as were necessary to give effect to the Tribunal’s decision. The Applicant was granted a bridging visa pending the outcome of any further proceedings or applications he might make.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the Cancellation Decision should be revoked.[25][25] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].THE HEARING AND THE EVIDENCE The hearing was held on 26 February 2025 at the Tribunal’s Perth Registry. The Applicant was represented by Ms Alice Graziotti of Estrin Saul Lawyers and Migration Specialists. The Respondent was represented by Ms Miriam Williams of Minter Ellison. The Applicant and his representative appeared in-person. The Respondent appeared by video. At the hearing, the Applicant gave evidence and was cross-examined. The Applicant’s sister, Ms Fiona Walker, gave evidence in-person and was cross-examined. The following documents were marked as exhibits:(a)Applicant’s Statement of Facts, Issues and Contentions dated and filed 24 January 2025 (A1);(b)Applicant’s bundle of evidence, labelled W1-W12, comprising 50 pages, filed 24 January 2025 (A2);(c)Applicant’s supplementary bundle of evidence, labelled W13-W26, comprising 40 pages, filed 21 February 2025 (A3);(d)Respondent’s Statement of Facts, Issues and Contentions, dated and filed 14 February 2025 (R1);(e)Respondent’s Section 501 G-Documents, labelled G1-G28, comprising 251 pages, filed 6 January 2025 (R2); and(f)Respondent’s Supplementary G-Documents, labelled S1-S114, filed 19 February 2025 (R3). The Tribunal has taken into account the Applicant’s statements,[26] letters of support from the Applicant’s parents, sisters, brother-in-law, nieces, nephews and friends,[27] along with the oral evidence provided by the Applicant and his sister, Ms Fiona Walker.[26] See R2, G13-G16, pp 86-138; A3, W24, pp 84-7.[27] See R2, A2 and A3 (various). At hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘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), in their oral closing submissions.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, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[28] Failure to pass the character test arises as a matter of law.[29][28] Migration Act, s 501(7)(c).[29] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, 685 [63]. As noted above, on 31 January 2023 the Applicant was convicted in the Perth District Court of Western Australia of ‘possession of a prohibited drug with intent to sell or supply (methylamphetamine)’ and sentenced to a total of two years’ imprisonment.

Decision

Reasons for decision

On 15 May 2023, the Delegate cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) and was 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 territory (the Cancellation Decision).[15] The Applicant was notified by letter of the same date, which he received by hand delivery at Albany Regional Prison.[16][15] R2, G27, p 220.[16] R2, G27, p 220. On 25 May 2023, the Applicant made a request for revocation of the Cancellation Decision under s 501CA of the Migration Act,[17] and made representations to the Delegate in support of his request on 7 June 2023.[18][17] R2, G13, pp 86-90.[18] R2, G14, pp 91-109. On 17 December 2024, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, that, therefore, the power under [19] R2, G3-G5, pp 17-41.[20] R2, G3, p 17.s 501CA(4) was not enlivened, and made the Reviewable Decision.[19] The Applicant was notified of the Reviewable Decision by letter dated 17 December 2024, sent by email to his representative.[20] On 17 December 2024, the Applicant lodged an application for review in the Tribunal, for review of the Reviewable Decision.[21][21] R2, G2, pp 4-14. The Applicant was released on parole on 14 May 2024 and is currently detained at Yongah Hill Immigration Detention Centre.[22][22] R3, S1, p 1.ISSUES The issues before the Tribunal 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 the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[23] LEGISLATIVE FRAMEWORK[23] See Migration Act, s 501CA(4).Migration Act The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision. 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 or refuse 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:6For 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:7For 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.)

Ratio Decidendi

Legal Principle Established

Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[31][31] See Migration Act, s 501CA(4)(b)(i).CONSIDERATION OF REVOCATION As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction no. 110, 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.[32][32] Migration Act, s 501CA(4)(b)(ii). The Tribunal is 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. By reason of s 499(2A) of the Migration Act, in doing so, the Tribunal 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.Direction no. 110 On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction No. 99.[33][33] Direction no. 110, paras 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.[34] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction no. 110 where relevant to the decision.[35][34] Direction no. 110, para 5.1(4). [35] Direction no. 110, para 6. Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’ including para 5.1(3) which provides that: Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case. Paragraph 5.2 of Direction no. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:1Australia 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 non­citizens 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.2The safety of the Australian Community is the highest priority of the Australian Government. 3Non-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.4The 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 [sic] risk of causing physical harm to the Australian community.5Australia 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.6With 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. 7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non­citizen'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. 8The 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.