Federal Court of Australia

Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 82

ORDERS

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The First Respondent pay the Appellant’s costs.

3. The orders of the primary judge on 19 July 2024 are set aside and, in lieu thereof, the following orders are substituted:

(a) The decision of the Second Respondent dated 9 November 2022 be set aside.

(b) The matter be remitted to the Second Respondent to be determined according to law.

(c) The First Respondent pay the Applicant’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1 On 9 November 2022, the second respondent (the Tribunal) affirmed a decision by the first respondent (the Minister, also respondent), pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), not to revoke the cancellation of the appellant’s visa on the basis that there was not “another reason” why the cancellation decision should be revoked.  There is no issue that the appellant did not pass the character test.

2 The appellant applied for judicial review of the Tribunal’s decision on 21 December 2022.

3 On 19 July 2024, the primary judge dismissed the appellant’s application for review of the Tribunal’s decision made under s 39B of the Judiciary Act 1903 (Cth) and s 476A of the Migration Act:  Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 790 (Primary Judgment).  The appellant appeals from the Primary Judgment.

4 The appellant raised three grounds of appeal by way of the Notice of Appeal filed on 19 August 2024.  The appellant was assisted by counsel in the preparation of his Notice of Appeal and written submissions, although he appeared in person at the hearing of the appeal.

5 Shortly after the hearing, the Court raised an issue with the parties regarding a document in the Appeal Book, which purported to be an order varying an Apprehended Violence Order (AVO), dated 9 November 2021.  For reasons that follow, that document assumed significance in the appeal.  The Court invited short written submissions addressing the identity/status of the document, and the significance of the document to the findings of the Tribunal.  On 21 March 2025, the Court subsequently granted leave (without objection) to:

(a) the appellant to file an Amended Notice of Appeal, which raises a fourth ground of appeal; and

(b) the parties to file submissions directed to the new ground.

The appellant was assisted by counsel in the preparation of his Amended Notice of Appeal and submissions on the new ground.

6 The grounds of appeal allege error in the Primary Judgment, raising whether:

(1) the “cumulative impact” of the decision in Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4018 (Tribunal Decision) punished the appellant (Ground 1);

(2) the Tribunal (wrongly) proceeded on the basis that government policy that it was bound to apply was to treat family or domestic violence as a matter of “exceptional seriousness” (Ground 2);

(3) the Tribunal failed to “meaningfully consider” paragraph 8.3(a), (b) and (c) of Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), and in that regard:

(a) whether the Tribunal addressed a separate claim regarding the appellant’s financial support for his school-aged children (Ground 3(a)); and

(b) whether the Tribunal made a “material error of fact” regarding the existence of corroborative evidence to support the appellant’s partner’s application to vary an AVO (Ground 3(b));

(4) the primary judge and Tribunal failed to consider a variation made on 9 November 2021 to an AVO, dated 1 June 2021, permitting the appellant to have contact with his family while he was in immigration detention, amounting to a jurisdictional error (Ground 4).

1. Factual background

7 A comprehensive factual background to this matter is set out in the Tribunal Decision.

8 The appellant, Mr Kilisitofa (Christopher) Lasalo, was born in Tonga and moved to Australia in 1984 with his grandparents at the age of four.  He has lived in Australia since that time.  At the time of cancellation, the appellant held a Class BB Subclass 155 Five Year Resident Return visa, which permitted him to live permanently in Australia while remaining a citizen of Tonga.

9 On 1 June 2021, the appellant was convicted of various offences, including assault and offences of domestic violence.  The appellant was sentenced to an aggregate term of imprisonment of 12 months, with a non-parole period of five months.

10 After being incarcerated at the Silverwater and Manus Correctional Centres for five months, the appellant was transferred to Villawood Immigration Centre.  In December 2022, the appellant was released following the Full Court decision in Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177.  In that decision, the Full Court relevantly found at [48] that an aggregate sentence of 12 months did not qualify for mandatory visa cancellation under s 501(3A) of the Migration Act. That decision was reversed by the High Court in Pearson v Commonwealth [2024] HCA 46; (2024) 420 ALR 41.

11 On 10 August 2021, a delegate of the Minister wrote to the appellant to notify him that the Minister had decided to cancel his visa pursuant to the mandatory provisions under s 501(3A) of the Migration Act on the basis that he did not satisfy the character test due to his “substantial criminal record”.

12 On 6 September 2021, the appellant made representations to the Minister seeking a revocation of the 10 August 2021 cancellation.  On 18 August 2022, a delegate of the Minister refused to revoke the mandatory cancellation of the appellant’s visa on the basis that the delegate was not satisfied that the appellant passed the character test.

13 On 20 August 2022, the appellant applied for review by the Tribunal.  On 9 November 2022, the Tribunal affirmed the decision under review.  On 19 July 2024, the primary judge affirmed the Tribunal Decision.

2. Construction of Direction 90

14 Section 501(3A) of the Migration Act requires the Minister to cancel a visa, relevantly, if the Minister is satisfied that the visa holder does not pass the character test by the operation of s 501(6)(a).

15 Section 501(6)(a) provides that a person does not pass the character test if they have a “substantial criminal record”, which is defined relevantly in s 501(7)(c) to include the circumstance where a person has been sentenced to a term of imprisonment of 12 months or more.

16 Section 501CA(3)(b) requires the Minister to invite the affected person to make representations to the Minister about revocation of the decision under s 501(3A) (the original decision).

17 Section 501CA(4) provides:

The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

18 Section 499(1) empowers the Minister to give written directions to a person or body with functions or powers under the Migration Act about the performance of their functions, or the exercise of their powers.  The relevant person or body is required by the Act to comply with such a direction:  s 499(2A).  The Minister cannot give directions that would be inconsistent with the Act or its regulations:  s 499(2).

19 The relevant direction for this matter is Direction 90.

20 Paragraph 8 of Direction 90 is titled “Primary considerations”, and provides:

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the best interests of minor children in Australia;

(4)    expectations of the Australian community.

21 Paragraph 7 of Direction 90 is titled “Taking the relevant considerations into account”, and states that:

(1)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2)    Primary considerations should generally be given greater weight than other considerations.

(3)    One or more primary considerations may outweigh other primary considerations.

22 While certain considerations are designated as “primary”, the decision-maker is nonetheless required to balance competing considerations so as to accord the weight that it considers appropriate to the consideration in issue.  As Gray J observed in Milne v Minister for Immigration and Citizenship [2010] FCA 495; (2010) 52 AAR 1 at [45] (with respect to Direction – Visa Refusal and Cancellation under section 501 – No.  21):

…The decision-maker is therefore authorised, but not bound, to give less weight to the other considerations than to the primary considerations.  A decision-maker who acted on the view that he or she was bound to give less weight to the other considerations than to the primary considerations would be in error.  The adoption of such a principle would lead to the result that the decision would always be made according to the primary considerations, because the other considerations would never be allowed to outweigh the effect of the primary considerations.  A true balancing process could result in a decision not to cancel a visa when a slight balance of the primary considerations in favour of cancellation is measured against other considerations pointing strongly against cancellation.  In many cases, the three primary considerations will not all point in the same direction.  The balancing process is not intended to be mechanical.  It is certainly not intended always to produce the result dictated by the preponderance of the primary considerations.  If that were the intention, it would be pointless to instruct the decision-maker to have regard to the other considerations.  For a decision-maker to regard himself or herself as bound to give less weight to the other considerations than to the primary considerations would be a jurisdictional error.  It would mean that the decision-maker would not have discharged his or her statutory function.

23 In relation to Direction 90, the Full Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [27]–[28] (Colvin, Stewart and Jackson JJ) spoke of the burden in evaluating the relative significance of the primary and other considerations:

…the Direction requires greater weight to be given to primary considerations unless there is some reason why that general approach should not be adopted.  Further, the Direction does not confine the decision-maker to the primary and other considerations.  It follows that part of the task for a decision-maker in complying with the Direction is to evaluate whether it is appropriate for a consideration that is not a primary consideration to be given greater weight than one or more primary considerations.  In addition, when evaluating whether there is “another reason” to revoke a visa cancellation in the exercise of the power conferred by s 501CA(4), the decision-maker must evaluate whether one or more primary considerations outweighs other primary considerations.

In consequence, compliance with the Direction is not achieved by focussing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation.  The real burden of the task to be undertaken by a decision-maker who must comply with the Direction is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.  A task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments.  To undertake the task in that manner is not to comply with the Direction.

24 The corollary of that burden is the weight to be given to individual considerations, in this case, family violence.  Paragraph 8.2 of Direction 90 makes it clear that the Government’s concerns (in relation to non-citizens who engage in family violence) are proportionate to the seriousness of the family violence engaged in by the non-citizen.  In that regard, attention is drawn to subparagraph 3, which invites the decision-maker to consider the seriousness of the family violence engaged in by the non-citizen.  That implies a degree or gradation of seriousness.

25 In the context of the primary consideration of the protection of the Australian community from criminal or other serious conduct, paragraph 8.1.1(1)(a)(iii) provides that in considering the nature and seriousness of the non-citizen’s criminal offending, or other conduct, the decision-maker must have regard to the fact that the Australian Government and community views “very seriously” types of crimes or conduct in the form of acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.

2.1 Tribunal not bound to consider offence “very serious”

26 Counsel for the respondent submitted that the view expressed in paragraph 8.1.1(1)(a)(iii) was a baseline for the assessment of seriousness for the purposes of paragraph 8.2(3), such that any assessment of the seriousness of the family violence perpetrated by the non-citizen could not be less than “very serious” (according with the view expressed in paragraph 8.1.1(1)(a)(iii)).  That is not what the paragraph says.

27 Direction 90 itself explains that it is no more than a guide to decision-makers, but one, according to s 499(2A), to which decision-makers must comply.  The latter dictate is obscure in circumstances where it is well-established that directions made under s 499 cannot compel a repository of a power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker’s view is that different weight should be given to a particular matter:  Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; (2023) 296 FCR 582 at [23] per Mortimer J, Raper J agreeing at [81]; Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171; 301 FCR 484 at [71] (Katzmann, O’Bryan and McElwaine JJ).

28 Whatever the practical utility of such guidance (see Re Drake v Minister for Immigration and Ethnic Affairs (No 21) (1979) 2 ALD 634 at 639–42 per Brennan J), paragraph 8.1.1(1)(a)(iii) of Direction 90 does not operate as a qualification on the decision-maker’s task at paragraph 8.2(3).  As this Court explained in Price at [72], Direction 90 does not require the Tribunal to find that the conduct in question was “very serious”.

3. Ground One – Punishment of the appellant

29 The appellant claims the primary judge erred by finding that the cumulative impact of the decision by the Tribunal did not punish the appellant.

3.1 Appellant’s submissions

30 The appellant accepts that the Commonwealth has the power to cancel his visa, and that this power is not punitive in character.  However, the appellant contends that, when the Tribunal makes a decision under s 499 of the Migration Act, the appellant must not be punished or re-punished by the executive, and that the appellant remains a beneficiary of the principle in Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.  The appellant did not identify that principle.  However, the respondent acknowledged the principle stated in Lim at 27 (Brennan, Deane and Dawson JJ):

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character.  The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth.  That function appertains exclusively to and ‘could not be excluded from’ the judicial power of the Commonwealth.  That being so, Ch III of the Constitution precludes the enactment, in purported pursuance of any of the subsections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive.

(Citations omitted and emphasis added.)

31 The appellant submits that the primary judge erred in concluding that the reasons of the Tribunal, collectively or cumulatively, did not reveal that the Tribunal was disposed to, or engaged in, punishment or re-punishment of the appellant, contrary to the principle in Lim.  The appellant’s contentions below are outlined at [39] of the Primary Judgment, and addressed by the primary judge at [63]–[65].

32 In written submissions, the appellant adverted to the primary judge’s acceptance that the observation made by the Tribunal in the second sentence of the Tribunal Decision at [27] implied that the Tribunal considered the sentence imposed on the appellant for domestic violence to have been somewhat lenient.  The appellant submits that these remarks — coupled with the Tribunal’s disagreement with a 2021 Sentencing Assessment Report that the appellant’s risk of reoffending was low (Tribunal Decision at [76]–[81]) — reveal that the Tribunal’s attitude towards the appellant was that he had not been sufficiently punished, and that “the Tribunal would see to it” that the appellant was punished in a way that the court system had failed to do.

33 The appellant submits that the Tribunal’s reference (at [61] of the Tribunal Decision) to the government policy regarding family violence crimes as matters of “exceptional seriousness” (as distinct from the “very serious” terminology used in Direction 90) was not “loose language” (as the primary judge held at [89]), but, as a mistake and an expression of the Tribunal’s own personal views about family violence, is another indicator that the Tribunal is punishing the appellant.

34 The appellant contends that the primary judge (at [77]) understated as “infelicity” the Tribunal’s “strong personal renunciation” of family violence (see Tribunal Decision at [84]–[88]), which shows that the Tribunal is predisposed to judging the appellant by reference to the Member’s own views, and not by reference to the requirements of Direction 90.

35 The appellant submits, also in relation to the third ground of appeal, that the Tribunal at [101]–[112] of its decision did not take into account the appellant’s claim of social and economic support of his children in considering the best interests of the children, to which consideration the Tribunal gave “only moderate weight”, demonstrating that the Tribunal was “committed to punishment of the appellant”.

36 The appellant submits “a reading of all the reasons” reveals that the Tribunal was less concerned with the requirements of Direction 90, and more concerned with “retribution and denunciation of the appellant”, which is prohibited by the Constitution and amounts to a constructive failure to exercise jurisdiction.

3.2 Respondent’s submissions

37 The respondent accepted that the adjudgment and punishment of criminal guilt under a law of the Commonwealth was essentially and exclusively judicial in nature:  Lim at 27.

38 However, the respondent contends that the Tribunal, in exercising its review function in respect of a decision under s 501CA(4), was exercising an administrative function, and was not engaged in the punishment of the appellant, notwithstanding any strong views about the appellant’s offending.

39 The respondent submits the Tribunal’s expression of strong views about the appellant’s offending did not amount to the Tribunal misconstruing its statutory task, particularly in the context of a ministerial direction that requires the Tribunal to assess factors such as  the “nature and seriousness of the conduct” (paragraph 8.1.1); to take into account any family violence committed by the person (paragraph 8.2), and the expectations of the Australian community (paragraph 8.5(2)).

3.3 The Tribunal did not punish the appellant

40 Counsel for the respondent accepted at the hearing of the appeal that the Lim principle was engaged in the present case, explaining that “as a general principle, the Tribunal is not to engage in an exercise of power that would offend chapter III of the Constitution”.  Indeed, the respondent’s written submissions proceed on that basis.  However, neither the appellant’s nor the respondent’s submissions made clear how the principle in Lim, a constraint on legislative power, was engaged in circumstances where it was accepted by the appellant that the relevant power to cancel the appellant’s visa is not punitive.

41 It is not clear from the appellant’s submissions whether the appellant is impugning the intentions or motivation of the Tribunal and/or the consequences of its decision.  The Tribunal itself clarifies that the proceeding has nothing to do with the issue of punishment, which has already been determined and over which it has no remit:  Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [15] (which in turn cites the principle in Lim).  The respondent clarified at the hearing of the appeal that he understood the appellant’s case to comprise both purpose and result.  In either case, we discern no error in the finding of the primary judge at [82] that the reasons of the Tribunal do not demonstrate that the Tribunal was seeking to, or did, punish or repunish the appellant.

42 It is not evident how the principle in Lim is engaged, let alone infringed, by the Tribunal’s expression of its views as to the seriousness of the family violence in question and the leniency of the appellant’s punishment for those offences.

43 In any event, we do not infer from the Tribunal’s observations any animus to further punish the appellant.  While the Tribunal’s remarks on sentencing do not reveal error, they call to mind the caution of Mortimer J (as her Honour then was) in Singh at [32], pointing out the dangers in a Tribunal assuming too much about the sentencing process in the absence of evidence.

44 Neither the grounds of appeal, nor the grounds of the originating application below, contain a claim of bias.  To the extent that the appellant’s claim of a predisposition on the part of the Tribunal could be viewed as such, as Gleeson CJ and Gummow J stated in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72], natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

45 Further, while the imposition of harsh consequences has been described as an element of punishment, a consequence that is imposed by the State does not attract a characterisation as “punishment” merely because it might be described as harsh:  Alexander v Minister for Home Affairs [2022] HCA 19; (2022) 276 CLR 336 at [238]–[239].  In Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1, Gleeson CJ observed at [17] that punishment, in the sense of inflicting involuntary hardship or detriment by the State, is not an exclusively judicial function.  The appellant would need to demonstrate that the law in question is imposed as a sanction for proscribed conduct.  The appellant expressly negates that proposition.

46 Ground 1 fails.

4. Ground Two – Family violence as “exceptionally serious”

47 The appellant claims the primary judge erred by finding that the Tribunal did not ask the wrong question, or apply the wrong test, by proceeding on the basis that the government policy, which it was bound to apply, was to treat family or domestic violence as a matter of “exceptional seriousness”.

4.1 Appellant’s submissions

48 The appellant submits that the Tribunal asked the wrong question, or applied the wrong test, at [61] of its decision:

It is worth noting that the issue of “family violence” was introduced into [Direction 90] as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79.  This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.

(Emphasis added.)

49 The appellant submits that the words “exceptionally serious” are not synonymous with “very seriously” in paragraph 8.1.1(1)(a) of Direction 90, which provides:

In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

(a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

…

(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed…

(Emphasis added)

50 The appellant submits that the primary judge was wrong at [89] of the Primary Judgment to find that “the Tribunal’s use of the words ‘exceptional seriousness’ was no more than loose language”, and that the Tribunal fell into error by characterising family violence crimes as matters of “exceptional seriousness”, rather than as being “very serious”.

51 The appellant submits that the Tribunal misunderstood the standard to be applied under Direction 90, and instead applied an “elevated, heightened and therefore incorrect level of concern” regarding the appellant’s crimes or conduct.

4.2 Respondent’s submissions

52 The respondent contends that there is no misunderstanding, and that on a fair reading of Direction 90, offending by way of family violence is elevated above other kinds of offending, thus giving family violence an exceptional quality.

53 In the alternative, the respondent submits that the primary judge was correct in finding that the Tribunal’s characterisation at [61] was merely “loose” language, and that the use or misuse of a singular word in a paragraph is not a firm basis for a finding of jurisdictional error.

4.3 The Tribunal did not misapprehend the standard to be applied

54 Insofar as the submissions of both parties proceed on the basis that: (a) the Tribunal is addressing paragraph 8.1.1(1)(a) of Direction 90 at [61] of its decision; and (b) Paragraph 8.1.1(1)(a) sets a “standard to be applied”, they are misconceived.  Accordingly, the question whether the term “exceptional seriousness” is synonymous with the words “very seriously” (paragraph 8.1.1(1)(a) of Direction 90), is a distraction.

55 It is not evident that the Tribunal’s use of the words “exceptional seriousness” is “loose language”.  We take “loose language” to mean that it is an inexact form of expression (of regarding family violence “very seriously” for the purposes of paragraph 8.1.1(1)(a) of Direction 90).  The description at [61] of the Tribunal’s decision accords with the point being made in that paragraph, which is that “family violence” was a form of criminal or serious conduct singled out in Direction 90 (as distinct from its predecessor, Direction 79).  In any event, it is of no moment.

56 It is evident from [58]–[59] of the Tribunal Decision that the Tribunal is addressing the “nature and seriousness of the conduct” for the purposes of paragraph 8.1(2) of Direction 90, and is not, by [61], seeking to quote or paraphrase paragraph 8.1.1(1)(a). The Tribunal does this later — correctly — at [69] of its decision.

57 Furthermore, even if the Tribunal were attempting to paraphrase the views of the Australian Government and community in paragraph 8.1.1(1)(a), and did so incorrectly, in effect setting the standard higher, in order to succeed, the appellant would need to demonstrate that:

(a) those views are a baseline below which the Tribunal could not venture, which we do not accept for the reasons expressed above (at [25]–[27]); and

(b) the Tribunal did not come to its own view of the seriousness of the appellant’s conduct, instead adopting a higher, erroneous standard, which we do not accept.

58 It is evident from the Tribunal’s reasons at [70] that it assessed the offences committed by the appellant as serious on the basis of a number of indicia.  The Tribunal concludes at [72] that it must rate the appellant’s offending behaviour at a heightened level of seriousness “as per the criteria of the Ministerial Direction”.  The reference to criteria is troubling at first blush.  While paragraph 8.1.1(1) of Direction 90 provides that the decision-maker must have regard to certain factors, including how certain types of crimes are regarded by the Australian Government and community, the guidance at that paragraph does not — and cannot — dictate the outcome of the Tribunal’s consideration of the seriousness of the appellant’s conduct.  Indeed, the reference in paragraph 8.2(1) to concerns “proportionate” to the seriousness of family violence engaged in, which is to be assessed by the Tribunal in accordance with paragraph 8.2(3), suggests that there is no dictate.

59 Nor is it evident that the Tribunal perceived a dictate, or misunderstood the purport of paragraph 8.1.1(1) of Direction 90, which the Tribunal cites at [69].  Paragraph 8.1.1(1)(a) requires the Tribunal to have regard to the “guidance” that acts of family violence are “very” serious matters.  Paragraph 8.1.1(1)(a) provides that the Australian Government and community “regard” these types of crimes “very seriously”.  We do not consider the Tribunal’s paraphrase of paragraph 8.1.1(1)(a) to present a material distinction.

60 This is so especially in light of the Tribunal’s consideration of the seriousness of the family violence engaged in by the appellant, as per paragraph 8.2(3) of Direction 90.  In undertaking that assessment, the Tribunal must — and did — have regard to the views of the Australian Government and community, as per paragraph 8.1.1(1) of Direction 90 (as noted at [69]).  However, the Tribunal made it clear that “[t]here is no doubt where this Tribunal stands in relation to matters of family or domestic violence”.  After consideration of three separate instances (at [20]–[32], [91]), the Tribunal came to its own conclusion that the level of family violence perpetrated by the Applicant was “gross”. The Tribunal took into account:

the sentiments of the community (at [84]–[86], [99]);

the appellant’s expressions of remorse and excuses (including victim blaming) (at [93]–[97]);

the impact on victims (at [98]–[99]); and

breaches of domestic violence orders, which the Tribunal considered themselves to be “matters of utmost seriousness” (at [87]–[88]).

61 It is not evident that the Tribunal asked itself the wrong question or applied the wrong test at [61], either as a matter of the level of seriousness with which the Government and community view these types of crimes (as per paragraph 8.1.1(1)(a) of Direction 90), or as a matter of the manner in which the Tribunal had regard to that view (pursuant to paragraph 8.2(3)).

62 Ground 2 fails.

5. Ground Three – Failure to address separate claim and error of fact

63 The appellant contends the primary judge erred by finding that the Tribunal did not fail to meaningfully consider paragraphs 8.3(a), (b) and (c) of Direction 90 and/or material provided by the appellant regarding the best interests of his children, in circumstances where:

(a) the Tribunal did not address a separate claim, integer and/or evidence provided by the applicant in connection with his financial support for the school aged children (Ground 3(a)); and/or

(b) the Tribunal made a material error of fact and proceeded on a misunderstanding regarding the existence of corroborating evidence to support the appellant’s partner’s application to vary an apprehended violence order (Tribunal Decision, [107]–[108]) (Ground 3(b)).

5.1 Appellant’s submissions

5.1.1 Ground 3(a) – Failure to consider separate claim

64 The appellant submits that the Tribunal overlooked evidence about the financial support he provided to his family, in particular his three minor school-aged children, which constituted a separate claim or integer of the appellant’s claim.  The appellant submits that by failing to do so, the Tribunal failed to consider meaningfully the best interests of the appellant’s minor children, contrary to paragraph 8.3 of Direction 90.

65 It is not evident what distinction, if any, the appellant draws between failing to consider, and (by reason of that omission) failing to meaningfully consider, a claim (or evidence).  It is not possible to assess the quality of consideration where there has been none.

66 The appellant submits that the evidence before the Tribunal establishes the following:

the appellant’s long-term, established earning capacity, which supported his children’s private school education and extracurricular activities;

the appellant’s role as a parent in raising school leaders and good future citizens; and

the appellant’s role as an active parent in a functioning family unit.

67 The appellant submits that the primary judge erred in holding at [106] of the Primary Judgment that the Tribunal did not ignore, misunderstand or overlook the appellant’s argument about the interests and needs of his children.  The appellant submits that the Tribunal and primary judge failed to engage with the appellant’s argument that he was a source of significant and “relatively unusual” financial support for his children, and that his visa cancellation would have “enormous adverse implication for their futures”.

5.1.2 Ground 3(b) - Error of fact

68 The appellant further submits that the Tribunal overlooked information before it regarding the attempt of the appellant’s partner to vary an AVO so that the appellant could maintain contact with his children while in immigration detention.  The appellant pointed to information in the Appeal Book, which included an Application for Leave to Vary or Revoke and Application to Vary or Revoke Apprehended Violence Order, filed on 6 July 2021, and an Order Varying Apprehended Domestic Violence Order – Christopher Lasalo, dated 9 November 2021 (which is also relevant to Ground 4).

69 The appellant contends the primary judge erred at [107] in finding that this error was “not … of any moment”.  The appellant submits that it was material in that:

(a) it went to the question of support of the appellant’s partner for the appellant and for visitation by his children while he was incarcerated; and

(b) it was held against the appellant in that it provided support for the Minister’s submission that the appellant played a limited role in his children’s lives.

The appellant contended that, had this information not been overlooked, the Tribunal may have afforded more significant weight to the consideration of the best interests of the children (which the Tribunal accorded “only moderate weight” in favour of the appellant, at [112]).

5.2 Respondent’s submissions

5.2.1 Ground 3(a) – Consideration of substance of claims

70 The respondent submits that it was unnecessary for the Tribunal to refer to every aspect of the appellant’s representations concerning the best interests of his three minor children.  Instead, the respondent submits that the Tribunal was required to consider the substance of the representations advanced, having read, considered and understood those representations: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [24].

71 The respondent submits that the Tribunal was not required to refer to and address “line by line” every aspect of the representations advanced:  Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123 at [56].

72 The respondent submits that the primary judge was correct in holding at [103] that the Tribunal had not ignored, misunderstood or overlooked the arguments advanced by the appellant.  The respondent highlighted that the Tribunal Decision referred to representations that the appellant supported one daughter’s education and that the appellant’s son considered him to be an “excellent role model for me”.  The Tribunal accepted further that it would be in the children’s best interests for the appellant to be allowed to remain in Australia.  The respondent submits that, in this context, the primary judge was correct to conclude that the Tribunal properly considered and understood the representations.

5.2.2 Ground 3(b) – Factual error insignificant

73 The respondent submits that the primary judge was correct to find no jurisdictional error resulted from the Tribunal’s failure to consider evidence of the application for a variation of the AVO, because there was no evidence of that asserted fact.  The submission that there was no evidence that the AVO had been varied was withdrawn on appeal, which has significance for this and the fourth ground of appeal.

74 The respondent contends that the appellant sought to argue a different point on appeal, being the support of the appellant’s partner for the appellant and visitation by his children while incarcerated.  The respondent submits that the Tribunal was instead addressing a different question of whether the appellant would play a limited role in the children’s lives in the future, and that it was correct for the primary judge to characterise the finding of a lack of evidence of a variation to the AVO having been sought, as an error of no moment.

5.3 Ground 3(a):  No failure to address separate claim of financial shortfall

75 The primary judge found that he was satisfied that the Tribunal was aware of and understood that the appellant was a source of emotional, social and other support to his children and family, even though the Tribunal did not refer to every line of representations made by the appellant or every item of evidence adduced on his behalf.

76 The Tribunal at [103] of the Tribunal Decision (quoted by the primary judge at [103] of the Primary Judgment) cites the evidence of the appellant’s children, who outline the extent to which their father provides “support” to their family, including their education.

77 The Tribunal does not advert to other evidence, including that of the appellant’s cousin, which states that the children would have to “sacrifice a lot of things” for which the appellant provides (including school fees, and music and sport lessons).  The Tribunal notes (at [103(e)]) the written submission of the appellant’s partner “which draws attention to the importance of [the appellant remaining in Australia] for their children”.  That submission is referable to two statements from the appellant’s partner, Ms Fagalilo, dated 5 April 2022 and 20 October 2022, which draw out more explicitly the claim that Ms Fagalilo would struggle financially to support the children in the appellant’s absence.

78 In our view, that evidence regarding the consequences of withdrawal of financial support from the appellant, while it lends colour to the claim, is nevertheless the corollary of the claim (which the Tribunal addresses) that the appellant provides such support.  In that regard, it is not a separate claim, nor one that the Tribunal overlooked.

79 It is also a claim that was made:

(a) in the absence of any explanation by the appellant as to the link between withdrawal of financial support and his removal from Australia; and

(b) in the context of the respondent’s submission that the appellant played a limited role in the life of his children.

80 In reaching its conclusion on the best interests of the minor children, which the Tribunal afforded “moderate weight”, the Tribunal made specific reference to paragraph 8.3(4)(a) and (g) of the Direction 90.

81 Paragraph 8.3(4)(a) directs attention to the nature and duration of the relationship between the child and the non-citizen, and directs that less weight should generally be given where there has been “… limited meaningful contact (including whether an existing Court order restricts contact)”.  Paragraph 8.4(g) calls for consideration of evidence that the child has been exposed to family violence.

82 The Tribunal made its observations in the context of considering the respondent’s submission to the Tribunal that the appellant’s contact with the children had been limited since the imposition of an AVO, which the Tribunal noted remained in place until 31 May 2023.  It was in that context that the Tribunal noted that there was no corroborating evidence before the Tribunal that the appellant’s partner had applied for a variation to the AVO on 6 July 2021.

83 Subsequently, in the context of assessing the impact on victims criterion, the Tribunal refers to “representations [by the appellant’s partner and children] in support of the Applicant”.  The Tribunal assessed this criterion as neutral.

84 In the context of assessing links to the community, the Tribunal refers to the several letters of support for the appellant by his partner (including that of 5 April 2022, which contains the claim of hindrance to financial support).  The Tribunal then refers to another letter by the appellant’s partner dated 20 October 2022, noting that she was “more focussed on the need for the [appellant] to remain in order to provide support for her children”, and that she would not contemplate relocating to Tonga.  The Tribunal observed that “these representations must carry some weight”.

85 In its concluding remarks, the Tribunal states that “that the [appellant] has strong and meaningful ties to the Australian community” and that the appellant’s removal “would impact those ties”, counting significantly in the appellant’s favour.  On that basis, the Tribunal said that nothing further can be gained by separate or additional weighting of any “business interest”, being any links established by the appellant’s employment in Australia.  There is no error in that assessment.

86 Ground 3(a) fails.

5.4 Ground 3(b):  The error was material to the Tribunal’s decision

87 We accept the respondent’s submission that:

(a) the appellant’s claim that his partner had applied to vary the AVO while he was in Villawood Detention Centre, was put to the Tribunal to support the proposition that the appellant had “regular contact” with his children while in detention; and

(b) the Tribunal correctly addressed the issue on these terms and in response to the respondent’s argument that the appellant’s limited role in the life of his children was even more limited since his incarceration and the issuance of the AVO, and that this limitation was likely to continue in the future.

88 However, as we noted above, that submission — and the Tribunal’s assessment — proceeded on an erroneous factual assumption.

89 The Tribunal made more of this perceived absence of “corroborating evidence” of the application for a variation of the AVO, to find “yet another example of the [appellant’s] blatant disregard for orders of the court”.  By doing so, the Tribunal proceeded on the basis (that is, it assumed) that there had been no variation to the AVO.  As the primary judge notes at [107], both parties’ counsel accepted in argument before his Honour that there was no evidence that the AVO had been varied.  The primary judge (and the Tribunal, it seems) proceeded on the basis that this was the “correct factual position”.  In fact, it was incorrect.

90 The Tribunal found that if the appellant had been in contact with his children after 1 June 2021 (the date of the original order), he would have done so in breach of the AVO.  In light of that finding, the “discovery” of the varied order is significant.  It demonstrates (in a way that the application for variation might suggest) that there would have been no such breach.  The Tribunal proceeded on a false premise.

91 It cannot be said that this premise could not have affected the Tribunal’s assessment of weight, particularly of the consideration of the best interests of the children, in light of its finding of the appellant’s “blatant disregard” for the orders of the court (at [110]).  Self-evidently, it did:  at [105]–[107].  Contrary to the respondent’s submission, whether there was sufficient evidence of disregard for court orders in the past is, in the particular circumstances of this matter, not to the point.

92 The issue is whether the error was material in the sense of rationally affecting the Tribunal’s weighted assessment of the considerations outlined in Direction 90, and therefore whether the decision that was in fact made could realistically have been different had there been no error (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 at [7], [14], [32]).  The appellant bears the onus of satisfying the Court that the threshold of materiality is met (LPDT at [14]).

93 The nature of the error is significant.  The Tribunal assessed the primary (and other) considerations outlined in Direction 90, individually and in the context of an “overall calculus”.  In doing so, the Tribunal attributed gradated weight to each of the primary and other considerations for and against the appellant, and then afforded further weight to the primary considerations.  Along with the other considerations examined in the context of Ground 4, we consider that there is a realistic possibility that the error in question could have affected the balance in favour of the appellant, and therefore the outcome of the Tribunal’s evaluative assessment.  Conversely, it cannot be affirmatively concluded that the outcome would inevitably have been the same had the error not been made (see LPDT at [16]).

94 Ground 3(b) is directed to the application to vary the AVO.  Notwithstanding the purported separation of Grounds 3(b) and 4, it is difficult to divorce the significance of the failure to consider the application to vary the AVO from the failure to consider the varied AVO.  Both documents appeared physically together in the material before the Tribunal.  More importantly, they are both significant to the Tribunal’s findings concerning the appellant’s disregard for court orders while in immigration detention (although the application for a variation of the AVO is inferential in that regard).

95 Under these circumstances, whereas Ground 3(b) by itself would fail, for the reasons given in relation to Ground 4 below, the error was material and this ground succeeds.

6. Ground Four – Failure to consider variation to AVO

96 The appellant claims that the primary judge and Tribunal erred by failing to consider a variation to an AVO, made on 9 November 2021.  The variation suspended a condition on the AVO, thereby permitting the appellant to have contact with his family while in immigration detention.  The appellant claims that the error is significant to the reasons of the Tribunal at [70], [80]–[81], [88], and [106]–[110].

6.1 Appellant’s submissions

97 In supplementary submissions filed on 28 March 2025, after the hearing of the appeal, the appellant argues that the “newly identified” error (being the failure to consider the variation of the AVO appearing in the Appeal Book, which suspended condition 6 of the AVO, thereby allowing the appellant to have contact with his partner and four children while in immigration detention) is material in itself, and compounded other errors in the Tribunal Decision.  It is said that the Tribunal’s findings at [107]–[109] were based on the “mistaken assumption” that there had been no variation order.  The appellant argues that the variation order was a counterpoint to the Tribunal’s finding at [110] regarding the appellant’s “blatant disregard for the orders of the court”. The appellant submits that the false assumption affected the Tribunal’s assessment of the appellant’s relationship with his children, and of the appellant’s attitude to court orders.  It is said that the Tribunal’s conclusions at [70], [80]–[81] and [88] were infected by this false assumption.

98 The appellant submits that consideration of the omitted document could have caused the Tribunal to accord greater than “moderate weight” to the consideration of the best interests of the children.

99 The appellant argues that this error may be considered together with the additional errors identified in Grounds 3(a) and (b) regarding the Tribunal’s consideration of the best interests of the children.  In short supplementary submissions dated 11 March 2025 (filed before the Amended Notice of Appeal), the appellant submitted that the AVO variation document falls within the description of “corroborative evidence to support the appellant’s partner’s application to vary an apprehended violence order”.  This is the subject of Ground 3(b), focuses on the attempt by the appellant’s partner to vary the AVO.

100 As indicated above at [94], the connection of this ground with Ground 3(b) is apparent, but not so in relation to Ground 3(a), which pertains to the appellant’s claim/evidence of financial support for his children.

6.2 Respondent’s submissions

101 The respondent submits that “on a proper examination of the Tribunal’s findings, the AVO variation order was not a critical piece of evidence that in having been overlooked by the Tribunal resulted in a jurisdictional error”.  The respondent maintains that a genuine assessment of the variation order and its significance would not have caused the Tribunal to accord greater weight to the children’s best interests.  The respondent says that this is because the Tribunal’s factual conclusions were not inconsistent with the variation order having been made.

102 The respondent relies on the appellant’s history of breaching court orders (made on 1 June 2021) that pre-dated the variation order (made on 9 November 2021), and submits that while the Tribunal would have erred in attributing to the appellant any AVO breaches for contact with his children after 1 June 2021, the Tribunal did not refer expressly to any such occasions, but referred only to the corrections record at [107] of the Tribunal Decision.  As such, the respondent submits that the Tribunal’s findings at [70], [80], [81] and [88] were based on earlier conduct of the appellant in breach of court orders.

103 We do not accept that submission.

104 There was no dispute that the AVO variation document was before the Tribunal, and that the Tribunal had “overlooked” the document.

105 However, notwithstanding both parties’ counsel accepted in argument before the primary judge that there was no evidence that the AVO had been varied, that was in error and the acceptance is now withdrawn.

106 The appellant maintained before the Tribunal that the appellant’s partner applied to have the AVO varied on 6 July 2021, and that condition 6 of the AVO (which restricted contact with the appellant’s partner and children) had been suspended whilst the appellant was in immigration detention.  The respondent contended that any contact that the appellant had with his children since June 2021 was in breach of the AVO.

107 The respondent accepts that the position stated by the primary judge at [107] can no longer be sustained.  Nonetheless, the respondent maintains that the Tribunal’s findings at [110] were supported on the evidence before the Tribunal, and “materially unaffected” by having overlooked the variation order.

6.3 The error was material to the Tribunal’s decision

108 While the document was not brought to the attention of the Tribunal, and the parties appear to have proceeded on the basis that there was no such material before the Tribunal, the document assumes significance in light of the submissions of the parties, and, ultimately, the findings of the Tribunal.  Accordingly, the relevant error is not the failure to consider the material per se.  The document (or, more specifically, the information contained therein) is not a mandatory relevant consideration, nor is there a question of an unarticulated representation arising from the document (cf. Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [64]).

109 The “failure” to consider the document was consequential in light of:

(a) the appellant’s claim that the AVO had been varied (so as to allow contact with the appellant’s children while in immigration detention);

(b) the respondent’s claim that any contact with the children since June 2021 was in breach of the AVO; and

(c) The Tribunal’s finding (at [110]) that it “cannot overlook that [the apparent breach of the AVO] appears to be yet another example of the [appellant’s] blatant disregard for the orders of the court”.

110 The respondent’s submission that the Tribunal does not rely (expressly) on the appellant’s post-1 June 2021 contact with his children to find (additional) breaches of court orders, is at odds with the Tribunal’s reasons at [110] and with [107] of the Primary Judgment.  In particular, the Tribunal relied on a Community Corrections Record dated 26 April 2021, thereby overlooking the subsequent AVO variation order of 9 November 2021, in order to establish the (false) premise of non-compliance with the AVO in the event of contact with the children at any time since 1 June 2021.

111 It is to be noted that the respondent, in short supplementary submissions, dated 12 March 2025, at [14], accepted that the Tribunal’s finding at [109] “might not necessarily have been correct, or entirely correct”.

112 While the respondent relies on the finding of the Tribunal (at [112]) that it would be in the best interests of the children for the appellant to remain in Australia, the consideration of the issues, which include “the Applicant’s blatant disregard for the orders of the court”, led the Tribunal to afford this criterion “only moderate weight” in favour of the appellant.

113 The respondent contends that the Tribunal overlooking the variation order was of no moment (a submission made and rejected in the context of Ground 3(b) above).

114 The respondent submits that this is because the Tribunal’s factual conclusions were not inconsistent with the variation order having been made.  We do not accept that submission in circumstances where the Tribunal considered that the appellant seeing his children (at any time since 1 June 2021) was “yet another example of the [appellant’s] blatant disregard for the orders of the Court”.  That is an important finding because one of the matters to which decision makers are obliged to have regard in Direction 90 is “the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness”, at paragraphs 8.1.1(1)(d) and 8.2(3)(a).

115 However, in determining whether the error is jurisdictional in nature, the relevant question is whether the error is material to the decision (MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [38]), not whether there is sufficient evidence to support the decision irrespective of the error, which calls upon the reviewing court to make the assessment for itself.  The Court must be careful not to assume the function of the decision-maker (LPDT at [15]).

116 The respondent’s submissions overlook the nature of the Tribunal’s evaluative assessment, which is to accord gradated weight in favour of, or against, the appellant.  Even if the Tribunal was to consider the appellant’s earlier breaches of court orders to qualify as a “blatant disregard” of court orders, it is a realistic possibility that the Tribunal might accord consideration of the best interests of the children greater weight in favour of the appellant knowing that the appellant did not breach court orders whilst in immigration detention (as presumed).

117 Furthermore, in the context of assessing the primary considerations of protection of the Australian community and family violence, the Tribunal considered the risk of the appellant reoffending.  Notwithstanding the appellant’s efforts at rehabilitation, the Tribunal stated (at [80]) that what weighs in the mind of the Tribunal is that the appellant has a “consistent record of disregarding court orders and directions”. The Tribunal noted this was evident in the appellant’s earlier traffic record, but is then repeated in his failure to adhere to bail conditions, corrections orders and AVOs (which the Tribunal appears to use interchangeably with “DVOs”).  The Tribunal found that this criterion weighted “to a significant degree” against the appellant ([82]).  The Tribunal also considered “breaches of DVOs … matters of utmost seriousness” in the context of assessing the seriousness of the family violence perpetrated ([88]), which the Tribunal considered was “gross” and weighed “to the greatest (significant) degree possible against the Applicant” ([100]).

118 In our view, there is a realistic possibility that the Tribunal’s assessment of the primary considerations of the protection of the Australian community, the seriousness of the family violence offences [70], [80], [88], and the best interests of the children [109]-[110], would have been weighted more favourably to the appellant had the error (being the presumed breach of the AVO after 1 June 2021) not been made.

119 Grounds 4 succeeds.

7. Conclusion

120 For the above reasons, the appeal is allowed, with costs.

Associate:

Dated:  20 June 2025