XFTR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2025] ARTA 1094

XFTR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 1094 (22 July 2025)
Applicant:XFTR
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2025/3546

Tribunal:Senior Member Hon J Rau SC
Place:Adelaide
Date:22 July 2025
Decision:The Tribunal affirms the decision under review.

..................[SGND].....................

Senior Member Hon J Rau SC

CATCHWORDS
MIGRATION – cancellation of Class TY Subclass 444 Special Category (temporary) visa under section 501(2) – whether the Applicant passes the character test – Applicant has substantial criminal record – whether the original visa cancellation under section 501(2) should be revoked – consideration of Ministerial Direction No. 110 – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
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
22 July 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(2) of the Migration Act 1958 (Cth) (“the Act”) on 12 May 2025,[1] to cancel his Class TY Subclass 444 Special Category (temporary) visa (“the Visa”). The Visa was cancelled on the basis that he did not satisfy the Respondent that he passed the character test, and the Respondent decided to exercise its discretion under section 501(2) to cancel the Visa.[2]
[1] Hearing Book (“HB”), 19-49.
[2] Ibid.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have a “substantial criminal record”.[3]
[3] Migration Act 1958 (Cth), section 501(6)(a).
In this case, the Applicant has been sentenced to a term of imprisonment of 12 months or more.[4]
[4] Ibid section 501(7)(c).
The Applicant was convicted in the NSW Local Court at Liverpool of common assault (DV), contravene prohibition/restriction in AVO (domestic) and stalk/intimidate intend fear physical etc harm (domestic) on 11 October 2021. He was sentenced to a term of 2 years imprisonment for each of the three matters, to be served by way of an Intensive Correction Order in the community.[5]
[5] HB 545-559.
The Applicant was also convicted and sentenced on 18 December 2014 to a period of 18 months imprisonment (suspended) for assault occasioning actual bodily harm (DV).[6]
[6] HB 51.
Either of these convictions are sufficient to engage the relevant provisions of the Act.
Section 501(2) gives the Respondent the discretion to cancel the Visa if the Respondent “reasonably suspects that” the Applicant does…

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: XFTR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 1094
Case: [2025] ARTA 1094
Decision Date: 22 July 2025

CaseChat Overview and Summary

The matter before the court involved the Applicant, a 46-year-old man with a substantial criminal history, who was seeking to challenge the cancellation of his Class TY Subclass 444 Special Category (temporary) visa under section 501(2) of the Migration Act 1958. The central issue was whether the Applicant met the character test and whether the original visa cancellation should be revoked. The court had to consider the implications of Ministerial Direction No. 110, which outlined the criteria for assessing such applications.

The Applicant, who had lived in Australia for 31 years since the age of 15, had a significant criminal record and had recently reoffended. The court acknowledged the adverse consequences of the visa cancellation but found that the primary consideration under the Ministerial Direction weighed heavily in favor of the cancellation. The Applicant's ties to Australia were also substantial, given his long residency and extensive family connections, including his wife and eight children. However, the court found that these ties did not outweigh the seriousness of his criminal conduct and the need to uphold the integrity of the visa system.

The court concluded that the Applicant did not pass the character test and that the visa cancellation should be upheld. The reasoning focused on the severity and recency of the Applicant's offending, his failure to reform, and the broader impact on the community's confidence in the visa system. The decision was consistent with the principles set out in the Ministerial Direction.

The final orders affirmed the decision to cancel the Applicant's visa and directed the Minister to proceed with the Applicant's removal from Australia.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant offered to call several other character witnesses, but the Respondent did not require them for cross-examination. They were, as a result, understandably not called.BACKGROUND FACTS The Applicant was born in American Samoa on [redacted] May 1978.[11][11] HB 93. In 1982, the Applicant migrated to New Zealand with his family. He was 4 years old. He obtained New Zealand citizenship.[12] It is suggested in the materials, though it was not confirmed, that he also has US citizenship.[13][12] Ibid.[13] HB 334. In any event, the matter proceeded upon the agreed basis that if the Applicant were to be removed from Australia, he would be returned to New Zealand. On 7 December 1993, the Applicant came to Australia following his parents. He was 15 years old. He attended year 10 and 11 in Australia but dropped out part way through year 12.[14][14] HB 334, 296. After leaving school, the Applicant worked in various jobs including spray painting and scaffolding.[15][15] HB 335. The Applicant has many siblings who live around Sydney.[16] The Applicant’s mother remarried after his father died and he has part-siblings.[16] HB 334, 252. In 1996, the Applicant was convicted of various offences. He was a juvenile at the time of the offending and/or the resultant conviction. To avoid any doubt, I have had no regard to these offences, notwithstanding their appearance on the Australian Criminal Intelligence Commission print out tendered in this case.[17] In the scheme of things, they would make little, if any, material difference even if they were to be considered.[17] HB 50-52. Police records dated 29 November 1998 state:“Victim: [Redacted]. POI: [The Applicant] dob: 1/5/78. About 5.35am on Sunday the 29th of November 1998, the victim was seated on the platform level of the second last carriage at Circular Quay station on his way to Wynyard Station. He looked into the rear carriage and saw the poi and another male assaulting another male. The victim was moved into the last carriage and approached the poi and the other male and asked them to stop hittig the other male. The poi and his offsider have then turned on the victim and have begun to hit him about the head area. The victim has also had his shirt ripped, and walkman taken in the struggle. . Train guards have seen what has happened and stopped the train, then called police. . Upon arrival police have found the train locked and the poi still on the train. The initial victim of the assault has left the area prior to police arrival. On speaking to the victim [redacted] he has stated that he wishes no further police action to be taken. Police spoke to the poi and his associates, and all were searched, due to police being told that the poi was in possession of a knife. The search of the poi and associated did not produce a knife. . The poi was the spoken to and sent on his way. . The search of the poi, his associates and the train also failed to locate the walkman. . On Thursday the 3rd December the victim [redacted] attended The Rocks police station and made a statement in relation to the matter. In that statement he stated that the poi approached him hit him in the back fo the head, then kneed him in the face causing a black eye and a 1.5 cm cut to his right eyebrow. The victim has provided a statement detailing what occurred and has intimated that he would be prepared to go to Court in relation to the matter. . Inquiries are continuing.”[18][18] HB 435-436.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. (a) legal consequence of the decision: No protection claims have been raised in this case.[136][136] HB 191. I accept that if the Applicant is not successful in these proceedings, he will be liable for detention and removal from Australia. This would be an adverse outcome, but one common to all unsuccessful applicants in similar proceedings. This Other Consideration (a) is neutral(b) Extent of Impediments if Removed Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: (a) the non-citizen’s age and health; (b)whether there are any substantial language or cultural barriers; and (c) any social, medical and/or economic support available to that non-citizen in that country. The Applicant is aged 46. He says that he has various physical conditions. These include asthma, eczema and sleep apnoea.[137] The Tribunal has not been provided with any specific supporting evidence expert evidence.[137] HB 142. The Applicant has claimed that he has an intellectual disability. There is no expert evidence to support this claim or explain how this may manifest itself in practical terms. It is clear that he has some literacy issues. I note however the observations of Judge Hock that he suffers from “mild intellectual retardation”.[138][138] HB 82. I note that the Applicant told a prison psychologist on 1 December 2006 that “his impulsive maladaptive behavioural outbursts were a representation of his limited skills in expressing anger/frustration and strong emotions.” He was referred to “OS&P for participation in managing emotions”.[139][139] HB 165. The Applicant is somewhat familiar with New Zealand. He lived there from the age of 4 until he was 15. His claimed poor literacy skills may add to his difficulties in reestablishing himself in New Zealand. He does have work skills however, for example as a scaffolder, that could be applied to obtain employment in New Zealand. The Applicant says that he has “no family members or support networks in New Zealand”.[140][140] HB 261. This is not quite accurate. In his evidence before the Tribunal, he said that he had cousins and an aunt in New Zealand. These are family on his father’s side. He said that his brother keeps in touch with them. I accept that the Applicant has had minimal ongoing contact with his relatives since he moved to Australia. That does not mean that they would not assist him, if need be. The Applicant was born in American Samoa, he has no connections there. It remains unclear whether he is a US citizen. In any event, these proceedings have been conducted on the basis that he would be going to New Zealand if the Visa was not returned.

Ratio Decidendi

Legal Principle Established

This Primary Consideration weighs very heavily in favour of the cancellation of the Visa.Primary Consideration 3: Ties to Australia Paragraph 8.3 of the Direction provides:(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. (2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian communityb) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. The Applicant came to Australia as a 15-year-old. He has lived in Australia for 31 years. Ignoring his juvenile record, he first offended when he was a young adult, about 5 years after first arriving here. He has continued to offend, in various ways, ever since. This is set out in detail above. His most recent offending was only 2 weeks ago. The Applicant has numerous close family members in Australia who are citizens, permanent residents or otherwise authorised to remain here indefinitely. These include his wife Ms RS, his children, stepchildren,[107] siblings, step siblings, cousins, nieces and nephews.[108][107] Discussed in more detail under Primary Consideration 4, but see HB 135.[108] HB 138-139. His parents are deceased, but he has a paternal aunt here. The eldest of Ms RS’ children, FV, is now an adult. He lives with his father, her former partner.[109] [109] Exhibit 11: Circumstances of Children. The rest of her children are discussed in more detail under Primary Consideration 4 below. I repeat those observations to the extent that they are relevant in this context. One of the Applicant’s minor children with his former partner, Ms FF, lives with him and Ms RS. The other lives with his mother, Ms FF.[110] Again, the detail of this is discussed further in the context of Primary Consideration 4.[110] Ibid. The Applicant’s now wife, Ms RS, says of him:“I am a stay home mum to two of my children who I had with [The Applicant], my son is [redacted] (3) and my daughter [redacted] (4). I have four other children from my ex-partner and two step children from [The Applicant], making that eight children between the two of us and they are all of our kids. [The Applicant] and I have known each since 2016 and started a domestic relationship in 2017. We got married in December in 2021 and we currently live at the above address since November 2023.[The Applicant] is an excellent dad to our children. If [The Applicant] was to be deported it would cause a huge grievance upon myself and our children. My two youngest kids will suffer immensely from [The Applicant]'s absence which could cause serious emotional and psychological distress for them as they won't understand . [The Applicant] has two other children [redacted] (13) and [redacted] (7) from his ex-partner and they come over every weekend from Friday after school to Sunday. If [The Applicant] was to be departed I most likely won't see [redacted] and [redacted] as they are not my biological children. They will miss the opportunity to grow and see their siblings. They will also miss out on the support that [The Applicant] will provide to them as a father and the monarch of our family.We live in a property in [redacted] and the rent is $780 per week. Feeding a household of six to eight children and two adults cost around $600-$700. I am only a Centrelink payments and get $880 from Centrelink on parenting payments and I also get the family tax benefit of $1200. Our living expenses are large and without [The Applicant]'s financial support my children and I could become homeless or we would be separated. My four children will live with their dad and myself and two youngest children will possibly go into a refugee or couch surfing. I would possibly face discrimination being a single mum with income.Looking after six-eight children of mine will be stressful and have an affect on my mental health. I commemorate all the single parents out there, especially with the increase of living expenses. My eldest son will most likely take on the role of a father figure for my two youngest kids which he shouldn't have to do as it's not his responsibility, but I will require his assistance because I won't have any support. My children will miss life experiences with their dad [The Applicant] and they are the ones that will truly suffer if [The Applicant] got deported.Throughout the years that I have known [The Applicant] he has been a real family man, not only to our kids but also to his five younger siblings. He was a pillar of support, strength, and comfort for his siblings when their dad passed away in 2007 . Two years later when [The Applicant] was released from prison he took on the responsibility to run the household. He paid for utility bills, rental payment, and groceries for the family. The family suffered another significant loss in 2019 when [The Applicant]'s mum passed away from lung cancer. Exactly a year later [The Applicant]'s step dad passed away in 2020. The [The Applicant] family have had significant losses throughout their lives. They are very supportive during the process of gathering documentation for [The Applicant]'s deportation hearing.[The Applicant] is remorseful for what he has done in the past, he has paid for the consequences of his actions and continues to pay them by paying compensation still to his victim from the crime he was convicted for in 1999 - 2010. He deeply regrets the decision he made that night. He missed important life events with his parents and his siblings. He was in prison when his dad passed away and within the Samoan culture being present during the preparation of a funeral is highly looked upon by elders, priests, & extended family members. He was only granted one day to attend the funeral of his father on compassionate grounds, he wasn't allowed to attend the church service or the wake after the funeral. He was only allowed to be at the burial.I beg that you take into consideration how myself, our children, and [The Applicant]'s siblings will suffer with his physical absence. [The Applicant]'s deportation not only affects him. I am confident to say and know that if [The Applicant] gets granted to stay and become an Australian Citizen that he will not be a threat to Australia or its people. I believe that the statements in this declaration are true in every particular, and I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, the punishment for which is imprisonment for a term of 4 years.”[111][111] HB 197-198.