Kurth and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1971 | Case summary

Kurth and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1971 | Case summary | Zoe

The Applicant was born in NZ, where his mother and two brothers remain. In 2002, when he was 15 years of age, Mr Kurth's father died suddenly and unexpectedly.[7] He commenced using illicit substances shortly thereafter.
In 2004, the Applicant started appearing in the District Court of New Zealand for drug and dishonest offending.[8] He appeared to stabilise himself thereafter and successfully completed his carpentry apprenticeship in September 2009.[9]
Having obtained that trade certification, Mr Kurth decided to move to Australia. He did so on 30 November 2009, and was taken to have applied for a special category visa on presentation of his passport at Coolangatta Airport.[10]
Mr Kurth first appeared before the Australian courts for simple drug offences in Queensland in February 2011.[11] He was dealt with by way of a good behaviour bond without conviction.
Mr Kurth returned to NZ for a few months in mid-2012 and acquired a conviction for an obscene act in public whilst he was there.[12] He told the Tribunal that this was for walking down the street without underwear and his fly down.
In November 2012, the Applicant met and commenced a relationship with his present partner, Ms LMS.[13] Ms LMS is a British national and Australian permanent resident.[14] She has three adult children from prior relationships. The Applicant's daughter, Miss EKS, was born in September 2014.[15] One of the stepchildren, Ms CS, has an infant daughter, Miss LS.[16]
The Applicant made a series of return trips to NZ in 2013, 2014 and 2015, without incident.[17] He was granted the present special category visa (the subject of the mandatory cancellation decision) on 27 September 2015.
The Applicant's main tranche of offending commenced in July 2016 in New South Wales (NSW).[18] It escalated from April 2020, with repeated thefts from businesses such as Bunnings Warehouse, and continued driving under the influence of methylamphetamine.
At some stage in June 2018, the Applicant commenced his own business - Aboard Above Flooring.[19] He was otherwise sub-contracting as a carpenter.
Between October 2020 and November 2024, the Applicant appeared before the Local Court of New South Wales on multiple occasions, where he was respectively sentenced to a series of escalating penalties, from community-based orders to an intensive correction order and then ultimately immediate imprisonment.[20]
As observed in the introduction to these reasons, in January 2025, the District Court reduced the initial sentence of 18 months' immediate imprisonment which had been imposed by the Local Court in November 2024 to 13 months' imprisonment.
There were two short periods of remand in July 2021 and April 2024, however Mr Kurth did not spend any substantial time in prison until June 2024.[21]
The Applicant was released to parole on 19 February 2025,[22] and was taken into immigration detention pending the outcome of this review. The parole term expired on 19 July 2025.[23]
The reviewable decision was made on 9 July 2025.[24] The applicant was notified of that decision by hand on 10 July 2025.[25] This notification package complied with the requirements of s 501G of the Migration Act and was the method of service prescribed by reg 5.02 of the Migration Regulations 1994 (Cth) (Regulations) for persons in immigration detention.
The Applicant sought review under s 500(1)(ba) of the Migration Act, within time on 12 July 2025.[26]
In accordance with s 500(6L) of the Migration Act, the Tribunal must determine the review application by 2 October 2025.

[21]

Mr Kurth's record consists primarily of simple drug offences, dishonesty-related offences and several traffic offences, including driving with prescribed illicit drugs in his system (six times) and careless driving. The offences committed in NZ are classified as offences in Australia.[51]
The parties agreed that the Applicant's criminal offending and other serious conduct to date could properly be classified as being 'serious'.[52]
The Minister highlighted the frequency of the offending, the trend of repeated offending between 2020 and 2024, which was often in contravention of community-based orders, and the cumulative effect of such offending on the Australian community.[53] The Minister sought to place emphasis on the remarks made by Magistrate Bartley in November 2024, to the effect that the Applicant had been 'given leniency in the [previous Community Correction Orders] and squandered it.'[54] However, considering the successful appeal to the District Court, where it was found that the sentence imposed by the Magistrate was manifestly excessive and that there had been error in the assessment of the objective seriousness of the conduct (particularly the simple drug offences and also some of the larceny offences),[55] the Tribunal must respectfully approach most of his Honour's sentencing remarks with some caution.
The Applicant sought to highlight the mitigating factors involved with the Applicant's offending to date, and to emphasise the remarks made by Baly SC DCJ in the District Court to the effect that there was 'nothing particularly remarkable about any of the offences for which [Mr Kurth] was sentenced by the magistrate [in November 2024] and for which [her Honour] was to re-sentence [the Applicant by way of re-hearing]' and that the offending did not appear to be 'overly serious examples of offences of their kind'.[56]
The Tribunal agrees with the assessment made by the NSW Courts that the Applicant's breach of multiple community-based orders between 2020 and 2024 is significant. The Applicant's overall history to date is indicative of a general disregard for the law.
For the reasons outlined below in respect of risk, the Applicant's history to date is inextricably linked to his drug addiction.
For the above reasons, the Tribunal finds the nature and seriousness of the Applicant's criminal offending and other serious conduct to date to be serious.

[27]

The Applicant argued that he posed a low risk of re-offending given his demonstrated abstinence from drugs, his participation in available programmes[61] and strong family support.[62] This was said to be supported by the opinion of Mr Camacho, to which the Tribunal will return.
The Minister argued that the Tribunal should find that the Applicant posed a low to medium risk of re-offending considering the Applicant's past behaviour and the fact that his abstinence had not been tested in the Australian community beyond the confines of prison or immigration detention.[63]
The Tribunal was provided with the last available Sentencing Assessment Report (SAR) authored by Corrective Services NSW, dated 30 April 2024 and in respect of one of the Applicant's larceny convictions.[64] The comments made in that SAR generally accord with the Applicant's evidence and presentation before the Tribunal, including the difference between remorse and regret.[65] The Applicant was relevantly assessed by Corrective Services against the 'Level of Service Inventory - Revised' actuarial instrument, which produced a risk rating of 'medium-low' risk of re-offending.[66]
The Applicant previously completed the Magistrates Early Referral into Treatment (MERIT) Programme in 2020.[67] However, the Applicant's participation in the MERIT Programme proved to be ineffectual, and the Applicant testified that it was not until he went to prison for a substantial period in June 2024 that he sobered up and began to realise the impact of his drug use on his life and choices.
In November 2024, Magistrate Bartley considered the Applicant to be more than a low risk of re-offending.[68] However, his Honour was prepared to accept that the Applicant had been abstinent from illicit drugs since June 2024 and that Mr Kurth meant what he said in terms of insight, regret and motivation to change.[69] Judge Baly SC reached similar conclusions in January 2025.[70] The Tribunal generally agrees with their Honours' assessments about the Applicant's risk of recidivism.
The Applicant's primary motivation to change seems to be the impact his incarceration has had on his daughter. The Applicant presented as being genuine in this respect. He also undertook to complete the six-month residential drug rehabilitation programme with One80TC in Yarramundi (NSW), starting Monday, 6 October 2025, if the Tribunal was to restore his visa.[71]
The Applicant did have a prison charge history between July 2024 to January 2025, however these prison offences appeared to relatively low level in nature and the Minister did not materially challenge his explanations for that misconduct.[72] Moreover, there was no evidence of any incidents of that kind being repeated in immigration detention since February 2025.
The Tribunal adjourned the hearing of this matter to accommodate the evidence provided late in the piece about the One80TC programme, and for a report to be provided by Mr Camacho after the first two-days of hearing and for him to then be made available for cross-examination.[73]
Mr Camacho is a registered psychologist in NSW. He was not briefed by the Applicant appropriately, including because he was not appraised with Mr Kurth's criminal history or the facts pertaining to it. The letter of instruction contained a series of assumptions which did not identify the evidential sources for those propositions, and the letter at times suggested the answers to the questions that had been posed. This should not be repeated.[74]
Mr Camacho's written opinion was missing key content requirements set out in Pt 3 of the Tribunal's Expert Evidence Practice Direction. The Tribunal accepts that this may have been a consequence of the speed within which it was prepared. For example, the Tribunal was told on 30 September 2025 that interviews were done on 24 and 25 September 2025. The report itself was dated 24 September 2025, but Mr Camacho testified that this was when he started to draft it. There was not an adequate explanation for the basis of Mr Camacho's written opinions in the report, including any indication of whether they were the consequence of 'structured professional judgment',[75] which the Tribunal was told orally on 30 September 2025 they were not (rather, the opinion was said to be a consequence of Mr Camacho's experience and intuition).
Mr Camacho's oral evidence was more helpful. The effect of his evidence was that he considered that Mr Kurth posed a low risk of recidivism. This was grounded on an assessment of genuine insight and regret for his past actions, particularly with respect to the consequences associated with having been separated from his partner and daughter. Mr Camacho considered that the Applicant had the capacity for consequential thinking, particularly after he had been abstinent from drugs for some time. This was said to be based upon the Applicant's previous completion of his carpentry apprenticeship in NZ and the previous periods in which he appeared to have been law-abiding. Mr Camacho considered that there was a need for Mr Kurth to deal with his addiction issues in the community and recommended both psychological and psychiatric support for this. The Minister accepted the force of those general propositions but otherwise sought that Mr Camacho's opinion be given limited weight by reason of the deficiencies identified above.
For the above reasons, the Tribunal finds, on the evidence before it, that Mr Kurth poses a low to moderate likelihood of re-offending. In particular, he has ongoing treatment needs relating to addiction. Steps have been taken to address those issues (especially, forced sobriety), but Mr Kurth requires further supervision and support, particularly in a community setting.

[33]

The parties endorsed the Tribunal's summary of principles in Re MBBG and Minister for Immigration and Multicultural Affairs [2025] ARTA 53 at [80]-[86].
The Minister identified that the Applicant had been found guilty on 11 April 2018, at a hearing before Magistrate Maiden in the Local Court of New South Wales, of one count of intentionally or recklessly causing criminal damage in circumstances considered to be 'domestic abuse' (breaking a glass window on or about 16 December 2017).[76] The window appears to have been broken by the Applicant in the early hours of the morning either during or following an argument between the Applicant and Ms LMS. Mr Kurth was otherwise acquitted of a related charge of aggravated common assault at that hearing. He was sentenced to a good behaviour bond without conviction.[77]
The Tribunal accepts that this conduct amounts to 'family violence' within the meaning of cl 8.2(2)(a) of the Direction (namely a finding of guilt). The related definition of family violence in cl 4(1) of the Direction includes as an example '(e) intentionally damaging or destroying property'.
A series of restraining orders were made in the Local Court in 2018 following this incident,[78] and the Applicant and Ms LMS entered into a written agreement in May 2018 about ongoing contact for the purposes of caring for their child.[79] These orders have now been revoked and Ms LMS has stated that she has no concerns with the Applicant returning to live with her and Miss EKS. In fact, this is what both Ms LMS and Miss EKS seek happen.
There was other material before the Tribunal suggestive of involvement in further acts of family violence in 2024.[80] However, Ms LMS testified, contrary to her interests, that these allegations were in fact false and that they were the consequence of her 'going out of [her] way to be vindictive'.
The Minister properly accepted that there was an isolated incident of family violence, committed in December 2017. It was, however, put by the Minister that the Tribunal should find that this conduct engaged the Australian Government's 'serious concerns' about conferring on non-citizens who engage in such conduct the privilege of remaining in Australia and that this should therefore be weighed heavily against revocation.
In assessing the seriousness of the family violence engaged in by Mr Kurth, the Tribunal notes that it appears to have been a one-off incident and that it was committed some eight years ago. The time which has elapsed, and the strength of the ongoing relationship between the Applicant and Ms LMS (and their daughter) suggests rehabilitation.
The Australian Government's concerns are stated to be 'proportionate' to the seriousness of the family violence engaged in (cl 8.2(1)). The Tribunal finds that there was a relatively minor incident of family violence committed in December 2017. It has not been repeated. Accordingly, the Government's 'serious concerns' are engaged but only to a slight degree. This consideration weighs against revocation but not determinatively.

[37]

Each of these family members are either permanent residents or Australian citizens.
The Tribunal was told that Ms LMS and Miss EKS live in government housing and that Ms LMS is presently unemployed and in receipt of social security benefits.
Ms LMS testified that the Applicant had previously been the family breadwinner and that he had been heavily involved in raising their daughter, and her other children. She told the Tribunal that their daughter's moods had been up and down since the Applicant had been in custody and that they were both 'missing the security of a having a male on the premises'. Ms LMS referred to the financial stress of losing the Applicant's employment income and she described the bond between the Applicant and their daughter as 'inseparable' and 'unbreakable'. They considered the Applicant to be the head of their family unit and Ms LMS stated that her other children, especially Ms CS, had also been affected by his absence. For example, Ms LMS referred to the Applicant as providing support and assistance when Miss LS was born, including picking out her first outfit and running things to/from the hospital.
In cross-examination, Ms LMS accepted that they would contemplate moving to NZ should the Applicant not be successful in this proceeding but indicated that this would not be her preference (particularly because of her adult children resident here). She was asked whether she had noticed a change in the Applicant since his incarceration and she indicated that this had been 'across the board'.
Miss EKS provided the Tribunal with a letter dated 14 September 2025.[85] She wanted the Tribunal to know how important her dad was in her life and how much the thought of him not being allowed to stay in Australia hurt. She said her dad made her feel safe and loved and that without him physically present she felt empty, sad and incomplete.
The Applicant otherwise advanced a case to the effect that he was a long-term resident, who had established his life, home and family in Australia. The Tribunal was provided with a series of references from former colleagues and even clients, which spoke highly of his skill and work ethic as a carpenter.[86] This included an offer of employment.[87]
The Minister conceded in closing submissions that the Applicant had reasonably significant ties to Australia (including his partner and daughter) and that this primary consideration should be given some weight in favour of revocation. That concession was appropriate.
The Tribunal finds that this primary consideration, including the impact of a decision on the Applicant's immediate family and the strength, nature and duration of the Applicant's other ties to Australia, weighs moderately in favour of revocation.

[49]

These adverse consequences can each be avoided by a positive decision to revoke the cancellation decision, and it should not be assumed that Parliament has evinced any preference as to the outcome of the review.[102]
When the Applicant's special category visa was cancelled, he became an 'unlawful non-citizen'.[103] That is, a non-citizen in the migration zone that did not hold a visa that is in effect.[104] This status conferred liability to be detained under s 189(1) of the Migration Act and this occurred on 19 February 2025. The Applicant is relevantly required to be detained until he is either removed from Australia under s 198 or he is granted a visa (including having his special category visa restored to him under s 501CA(4)).[105]
Sections 198(1) and (2B) of the Migration Act provide for removal either at written request or where there has been a mandatory cancellation and a subsequent decision made not to revoke that cancellation, respectively. The duty to remove an unlawful non-citizen arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.[106] However, s 198 of the Migration Act does not require or authorise a non-citizen's removal to a country if, during the course of a protection visa application, there has been a protection finding made for the person with respect to that country.[107]
The Applicant did not advance any non-refoulement obligation for consideration and none arises on the material before the Tribunal.
There is no reason to suppose that any required removal to the NZ would not be practicable in the reasonably foreseeable future and the Applicant has previously returned there on multiple occasions.[108]
It was accepted by the parties that a likely consequence of a decision to affirm the reviewable decision would be that the Applicant would be excluded from Australia and from the members of his Australian family into the foreseeable future, and that this would be a factor that would favour revocation.[109]
The legal and other consequences of the Tribunal's decision weigh in favour of revocation.

[50]

The Tribunal must consider the extent of any impediments that the Applicant may face if removed from Australia to NZ, in establishing himself, and in maintaining basic living standards (in the context of what is generally available to other citizens in that country), taking into account the Applicant's age and health, whether there are substantial language or cultural barriers, and any social, medical, and/or economic support available to him in NZ.[110]
The Applicant is 38 years old and in generally good health.[111] He has outstanding treatment needs with respect to substance use.
The Applicant left NZ as an adult. Accordingly, the Tribunal does not accept that there are any language or cultural barriers to the Applicant's return to NZ. Mr Kurth also has a NZ trade qualification, extensive work experience in Australia and extended supportive family resident in NZ.[112]
NZ has a comprehensive health, education and social security network.[113] Mr Kurth will be able to register and access those services as required. Support to deal with his drug addiction will be available to him through providers such as Narcotics Anonymous (as it was in Australia).[114]
Moreover, on any return to NZ, the Applicant may be subject to supervision by NZ authorities under the Returning Offenders (Management and Information) Act 2015 (NZ) (Returning Offenders Act).[115] This includes the potential for court-imposed drug or alcohol conditions.[116]
Community organisations such as the Prisoners Aid and Rehabilitation Services[117] and Te Pa[118] in NZ also provide support to people in the Applicant's position.
The Applicant argued that being made subject to parole/supervision regime created by the Returning Offenders Act in NZ would potentially 'create additional burdens and restrictions that would impede rather than support [his] reintegration'.[119] The Tribunal does not accept that proposition to be correct. The benefits of supervision and mandated requirements far outweigh the negatives of it. However, it must be said that, in that event, the Applicant would be potentially exposed to criminal sanction if he did not comply with any orders or directions made under that Act.[120] There are rights of review under that Act,[121] and any such orders are generally to be made by an NZ court, which the Tribunal respectfully considers to be an appropriate safeguard.
The Tribunal considers that the Applicant will be personally and deeply affected by permanent removal to NZ. This potential emotional and psychological hardship can be withstood, but this potential removal and subsequent adjustment should not be easily dismissed.
The Tribunal finds that the Applicant could likely re-establish himself in NZ and maintain basic living standards. Nevertheless, removal is a potentially devastating consequence, including associated negative impacts on his immediate family (particularly his daughter and partner). This weighs in favour of revocation.

[52]

The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether the Tribunal is ultimately satisfied that there is 'another reason' why the mandatory cancellation decision should be revoked.[127]
Clause 7(2) of the Direction states that the primary consideration in cl 8.1 (protection of the Australian community) is 'generally to be given greater weight than other primary considerations', and that, otherwise, the relevant 'primary considerations should generally be given greater weight than the [relevant] other considerations.' This guidance is consistent with the principle articulated at cl 5.2(2), that 'the safety of the Australian community is the highest priority of the Australian government'.
The Tribunal considers there to be good reason to depart from that policy in this case.[128] First, the Applicant poses an acceptable risk. Further, the above policy guidance does not mean that the other considerations are secondary to the primary considerations, or that they should always be given less weight.[129]
The Tribunal has found that the Applicant poses an acceptable risk of re-offending. His previous conduct was serious, but the risk of its repetition is low. The protection and expectations of the Australian community primary considerations weigh against revocation, and the Government's concerns about conferring the privilege to remain here on the perpetrators of family violence are enlivened though they are proportionate to the seriousness of the conduct engaged in. These considerations collectively weigh moderately against revocation. Against this, it was clear that an adverse decision would detrimentally impact the Applicant's daughter, partner and their extended family. There are also reasonably established ties in Australia. These two primary considerations, when taken together, point strongly in favour of revocation. The other relevant considerations weigh marginally in favour of revocation and add to that positive weight in favour of revocation. The Tribunal, after considering each of the relevant considerations identified within the Direction, is satisfied that there is 'another reason' to revoke that cancellation decision.
In summary, the Tribunal has considered the relevant considerations in this matter and determined that there is 'another reason' to revoke the cancellation. The correct decision is therefore to set aside the reviewable decision and substitute it with a decision to revoke the mandatory cancellation.

Kurth and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1971 (2 October 2025)

At a glance

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Judgment (88 paragraphs)

Legislation Cited (2)

Cases Cited (9)

Kurth and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1971 (2 October 2025)