Young and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 1215

Young and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1215 (24 July 2025)
Applicant:Paul Shane Young
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/3453

Tribunal:General Member J Cipolla
Place:Sydney
Date:24 July 2025

Decision:The decision not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is affirmed.

CATCHWORDS
MIGRATION – cancellation of Applicant’s Class BS Subclass 444 Special Category (Temporary) visa – substantial criminal record – trafficking in dangerous drugs – decision not to revoke cancellation affirmed.
LEGISLATION
Migration Act 1958 (Cth) s 501CA (4)
CASES
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
JYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 3617
FYBR v Minister for Home Affairs [2019] FCAFC 185
Irving V Minister (1996) FCA 663
SECONDARY MATERIALS
Direction No. 110, Visa cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
STATEMENT OF REASONS
CANCELLATION DECISION

On 25 July 2024 Mr Paul Shane Young (the Applicant) Subclass 444 Special Category (Temporary) visa was cancelled by a delegate of the Department under s 501(3A) of the Migration Act (the Act).
The delegate was not satisfied that the Applicant passed the character test because of the operation of s501(6)(a) (substantial criminal record) and on the basis of s501(7)(c) because he was serving a sentence of imprisonment, on a full-time basis in the Woodford Correctional Centre in Queensland for an offence against a law of the Commonwealth, State, or Territory and that the term of imprisonment was for 12 months or more.
On 26 July 2024 the Applicant made representations to the Department seeking revocation of the cancellation decision.
On 23 April 2025 a decision was made by a delegate of the Department finding that there was not another reason why the cancellation decision should be revoked.
BACKGROUND
The Applicant was born in Hamilton, New Zealand in November 1969. He is a New Zealand citizen.
The Applicant has one sibling a sister, Debbie, who resides with her husband and three children in Brisbane, Australia.
The Applicant’s parents separated when he was 13 years old, and he describes the separation as having a profound impact upon him. Both his parents remarried, and the Applicant states that he did not have a close relationship with either of his stepparents.
The Applicant’s father passed away in 2004 from pancreatic cancer. The Applicant’s mother passed away in 2023 from lung cancer. The Applicant states that his only remaining blood relative is his sister Debbie.
The Applicant moved to Auckland when he was 17 years old and started working initially in the retail industry and later in the hospitality industry. The Applicant states that over time he learned to be one of the best bartenders in Auckland and quickly progressed to a management position. The Applicant gained experience in…

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: Young and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1215
Case: [2025] ARTA 1215
Decision Date: 24 July 2025

CaseChat Overview and Summary

The case involves the Applicant, a New Zealand citizen with a substantial criminal record for drug-related offences in Australia, who challenged the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The Applicant's visa was cancelled by a delegate of the Department, who found that there was not another reason why the cancellation decision should be revoked. The decision of the delegate was subsequently affirmed by the Tribunal. The Applicant argued for the revocation of the visa cancellation decision, citing various factors including his employment history, family ties in Australia, and his rehabilitation efforts. The central legal issue was whether there existed another reason to revoke the visa cancellation decision, considering the Applicant's criminal history and the primary consideration of protecting the Australian community.

The Tribunal examined the primary consideration of protecting the Australian community, as outlined in Direction 110. It assessed the nature and seriousness of the Applicant's conduct to date, which predominantly involved drug-related offences. The Tribunal noted that crimes involving trafficking in dangerous drugs and possessing dangerous drugs are viewed very seriously by the Australian Government and community. Despite the Applicant's efforts at rehabilitation and his employment history, the Tribunal found that these factors did not outweigh the seriousness of the Applicant's criminal conduct. The Tribunal concluded that there was not another reason to revoke the visa cancellation decision, as the Applicant's criminal history posed a significant risk to the Australian community.

The Tribunal's reasoning was grounded in the importance of safeguarding the Australian community from the potential harm caused by non-citizens who engage in serious criminal conduct. While acknowledging the Applicant's contributions to the community and his family ties, the Tribunal ultimately determined that these factors did not sufficiently mitigate the risk posed by his criminal history. The decision was affirmed, upholding the original cancellation of the Applicant's visa due to his substantial criminal record.

The Tribunal affirmed the decision not to revoke the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The Applicant's appeal was dismissed, and the visa cancellation remained in effect.

Orders

Orders of the court

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Background

Background to the litigation

On 23 April 2025 a decision was made by a delegate of the Department finding that there was not another reason why the cancellation decision should be revoked.BACKGROUND The Applicant was born in Hamilton, New Zealand in November 1969. He is a New Zealand citizen. The Applicant has one sibling a sister, Debbie, who resides with her husband and three children in Brisbane, Australia. The Applicant’s parents separated when he was 13 years old, and he describes the separation as having a profound impact upon him. Both his parents remarried, and the Applicant states that he did not have a close relationship with either of his stepparents. The Applicant’s father passed away in 2004 from pancreatic cancer. The Applicant’s mother passed away in 2023 from lung cancer. The Applicant states that his only remaining blood relative is his sister Debbie. The Applicant moved to Auckland when he was 17 years old and started working initially in the retail industry and later in the hospitality industry. The Applicant states that over time he learned to be one of the best bartenders in Auckland and quickly progressed to a management position. The Applicant gained experience in New Zealand in a wide range of front of house positions which included cocktail bartender, nightclub manager and promotions manager. He also worked as a fine dining waiter progressing to a restaurant manager which is the career trajectory that led him to Australia. The Applicant visited Australia from New Zealand in 1993 for 3 days. The Applicant returned to Australia in 1995 to reside and worked in one of Sydney’s oldest clubs as a cocktail bartender. In 1997 the Applicant travelled back to New Zealand to attend his sister’s wedding and to attend to some family commitments and was in New Zealand for a few months. In 1998 the Applicant moved to Melbourne and worked as a cocktail bartender and then relocated to the Gold Coast where he worked in a hospitality position at the Marina Mirage. The Applicant relocated to Brisbane and worked in a number of restaurants and wine bars in that city. The Applicant then relocated to the Whitsundays, working in the hospitality industry in Airlie Beach. The Applicant has also worked in Perth and Cairns. In 2022, the Applicant decided to relocate back to Cairns in Far North Queensland working for a busy Italian restaurant and the Applicant stated during the period that he worked for this employer he progressed to the position of restaurant supervisor.OFFENDING HISTORY The evidence indicates that the Applicant was convicted of traffic offences in New Zealand in 1989 and 1990. Those convictions related to driving a motor scooter without a licence, operating a vehicle carelessly and drink driving, which led to the imposition of a fine and a 7 month driving disqualification. The Applicant’s offending history in Australia commenced in 2006 at which time he was convicted on 21 November 2006 by the Cairns Supreme Court with trafficking in dangerous drugs, possessing dangerous drugs, and receiving or possessing property obtained from trafficking or supplying.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Consequently, the Tribunal is not satisfied that there is another reason to revoke the visa cancellation.DECISION The decision not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is affirmed.

Ratio Decidendi

Legal Principle Established

Direction 110 sets out Primary Considerations and Other Considerations. These are addressed under their respective headings below.PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY The Direction states that Primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations. 8.1. Protection of the Australian community. (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; and b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conductThe Nature and Seriousness of the Applicant’s Conduct to Date When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now address. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, 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 Applicant’s criminal history in Australia commenced in 2005 and has largely involved drug use, possession and trafficking charges. The 2005 criminal history was dealt with by the Queensland Supreme Court in November 2006 and involved the court dealing with a number of summary matters and indictable matters. The summary matters included possession of utensils or pipes for drug use and possession of property suspected of having been used in connection with the commission of a drug offence. With respect to these matters the Applicant was convicted, however, no penalty was imposed. The indicatable matters included trafficking in dangerous drugs, possessing dangerous drugs at a quantity that exceeded the schedule and receiving or possessing property obtained from trafficking or supplying drugs. The indictable matters led to the imposition of a cumulative 10-month prison sentence and a pecuniary penalty of $4000.