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If your visa was cancelled on character grounds and the Administrative Review Tribunal (ART) refused to give it back, two recent s501CA Federal Court decisions are worth understanding. In Smith [2026] FCA 1520 and Puah [2026] FCA 1511, the Federal Court set aside ART decisions and sent both cases back to the Tribunal for a fresh review.
Neither person got their visa back from the Court. What the decisions show is how carefully the Tribunal must deal with the evidence, and where revocation cases often turn: the real facts behind a family violence label, and the full story of a life lived in Australia.
Step 1. Understand how an s501CA case reaches the Federal Court
Mandatory cancellation and the revocation request
Under section 501(3A) of the Migration Act, a visa must be cancelled if the holder fails the character test, generally because of a substantial criminal record such as a prison sentence of 12 months or more, and is serving a full-time prison sentence. You can then ask for the cancellation to be revoked under section 501CA(4). If the Department’s delegate refuses, you can generally seek a review at the ART.
What the Federal Court can and cannot do
The Federal Court does not re-decide the case. It checks whether the Tribunal made a legal error, for example by misreading the Ministerial Direction or ignoring a claim that was properly put to it. If it finds an error, it can send the matter back to the Tribunal, often to a differently constituted Tribunal, which then has to decide the case again.
Step 2. Smith: family violence must be proved, not assumed
What happened
The applicant, a New Zealand citizen on a Subclass 444 Special Category visa, had the visa mandatorily cancelled under section 501(3A) after an 18-month sentence. The delegate refused revocation and the ART affirmed that decision.
Part of the Tribunal’s reasoning treated a 2022 offence, throwing a brick through a window at a former partner’s home, as family violence. It did so because the woman was a former partner and because property damage appears as an example in Direction 110.
Why the Court set the decision aside
The Court held that the Direction’s definition still required findings that the conduct coerced or controlled a person, or caused them to be fearful. A listed example did not remove that step. The Tribunal also failed to make its own assessment of seriousness, including the impact on the victim, how often the conduct occurred, the cumulative picture and any rehabilitation aimed specifically at family violence.
A police label, or an example listed in a Direction, is not a finding. The Tribunal still has to look at what actually happened and decide whether the legal definition is met.
What Smith does not decide
The decision does not say property damage can never be family violence, and the Court did not restore the visa. It required the Tribunal to make a lawful fresh decision.
Step 3. Puah: long residence and caregiving must be properly weighed
What happened
The applicant, a Malaysian citizen holding a five-year Resident Return visa (Subclass 155), had his visa mandatorily cancelled after a five-year sentence for a serious drug supply offence. The ART affirmed the decision not to revoke the cancellation.
Why the Court set the decision aside
He arrived shortly before turning 18 and had spent nearly 24 years in Australia, including his whole adult life. Direction 110 contains a “tolerance principle”: the community may extend a higher level of tolerance to someone who has lived in Australia for most of their life, or from a very young age. The Tribunal quoted the principle but did not decide whether it applied to him, or how it affected its view of risk to the community and community expectations.
The Tribunal also overlooked an earlier, accepted claim that he would care for two elderly uncles. The Court quashed the decision and sent it back to the ART.
What Puah does not decide
Long residence or family care does not force a revocation. The tolerance principle is not a stand-alone mandatory consideration, and the Court did not decide the merits of the case.
Smith and Puah side by side
| Point | Smith [2026] FCA 1520 | Puah [2026] FCA 1511 |
|---|---|---|
| Visa | Subclass 444 Special Category | Subclass 155 Resident Return |
| Sentence | 18 months | Five years |
| Main issue | Whether a property damage offence was family violence | Long residence, the tolerance principle and a caregiving claim |
| Where the ART went wrong | Relied on a label and a listed example instead of making the required findings | Did not apply the tolerance principle or consider the accepted care claim |
| Result | Sent back to a differently constituted ART | Sent back to the ART |
| Visa restored? | No. A fresh review is required | No. A fresh review is required |
Step 4. What this means for your revocation request or ART review
Direction 123 starts on 31 October 2026
Both cases were decided under Direction 110. From 31 October 2026, Ministerial Direction 123 replaces it, with a broader definition of family violence and ties to Australia moving to an “other consideration”. Generally, the Direction in force on the date of the decision is the one that applies, so your case needs to be argued under the right one.
A practical process checklist
- Check the date on your notice. Time limits for revocation requests and ART reviews are short and strictly applied.
- Confirm which Direction is likely to apply on the date your matter will be decided.
- Review the whole decision record, from your original representations and the delegate’s reasons to each party’s statement of facts, issues and contentions and the hearing evidence.
- Test every alleged incident against each element of the Direction’s definitions, rather than accepting a label.
- Set out your life story in order: your age on arrival, formative years, work, family and community ties, and any time in custody.
- Explain any caring role in concrete terms: what you actually do, why it is needed, what the alternatives are and what your removal would change.
- Get advice before the hearing, not after it.
Frequently asked questions
Did the Federal Court give these visas back?
No. In both cases the Court found legal errors and sent the matter back to the ART for a fresh decision. The outcome of the new review is not decided.
Can property damage count as family violence?
It can. Smith does not rule it out. But under the Direction considered in that case, the decision-maker still had to make findings about whether the conduct coerced, controlled or caused fear, rather than relying on a label or a listed example.
Does living in Australia for a long time stop a cancellation?
Not on its own. Long residence and family care do not compel revocation, but where they are raised, they must be properly considered.
The ART has refused my revocation request. What now?
Judicial review in the Federal Court is limited to legal error, has strict time limits and is generally handled by lawyers. If a case is sent back to the ART, the fresh hearing is where the evidence needs to be rebuilt, and a registered migration agent can help you prepare and represent you at the ART hearing.
How HECT can help
HECT Migration & Appeal Experts is a registered migration agency that works on visa cancellations, character matters and Tribunal reviews every day. We can review your revocation request against the Direction that applies, help you build a clear life chronology and evidence plan, and represent you at the ART hearing. Read more about section 501 visa refusal and cancellation, or our plain-English guide to asking for a cancelled visa back. We work in English and Mandarin across our Australian offices.
If your visa has been cancelled or your revocation request refused, book a free 15-minute visa appeal consultation and we will tell you plainly where you stand.
Source: Federal Court of Australia, Smith [2026] FCA 1520 and Puah [2026] FCA 1511. Direction considered in both cases: Ministerial Direction No. 110, Department of Home Affairs.
This article is general information only and is not immigration assistance for your particular case. HECT Migration & Appeal Experts is a registered migration agency, not a law firm.
