Federal Court of Australia

HKRC v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 70

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant is to pay the costs of the first respondent to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM AND DOWNES JJ:

1    This is an appeal from the decision of a single judge of this Court in HKRC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 1288 (‘J’).

2    On 25 May 2020, a delegate of the Minister (the first respondent) mandatorily cancelled the appellant’s visa because he had a substantial criminal record, which included the sexual abuse of a minor, and therefore did not pass the character test under s 501(6) of the Migration Act 1958 (Cth). On 28 May 2020, the appellant sought revocation of the cancellation decision under s 501CA. On 19 December 2022, a delegate of the Minister decided not to revoke that decision on the basis that the appellant did not pass the character test and there was not another reason why it should be revoked. The appellant sought review of that decision in the Administrative Appeals Tribunal (the second respondent). The Tribunal affirmed the Minister’s decision.

3    Before the primary judge was an application for judicial review of the Tribunal’s decision. The primary judge dismissed the application.

4    For the reasons below, the appeal is dismissed.

Consideration

5    The relevant facts concerning the proceeding before the Tribunal and the Tribunal’s reasons for decision are set out at J[6]–[21].

6    As stated by the Tribunal at [11], the only issue before it was whether there was “another reason” to revoke the cancellation decision having regard to the principles and considerations in Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (‘Direction 99’).

7    This appeal concerns the application of Direction 99, which as explained below, has since been revoked. Paragraph 5.2 of Direction 99 contained the principles for deciding whether to revoke a cancellation decision. Specifically, it provided that ‘Decision-makers must take into account the primary and other considerations relevant to the individual case’.

8    Relevantly for this appeal, one such consideration is the strength, nature and duration of the person’s ties to Australia: see paragraph 8.3 (which is set out at J[22]). The primary judge recites relevant aspects of the Tribunal’s findings on this consideration at J[17] and J[20] as follows:

[17]    Under the heading “Impact on and ties with family members”, the Tribunal stated:

44.    If the applicant is unsuccessful and is not released from detention into the community, there will be a significant detrimental impact on the four immediate family members of the applicant, namely, his wife, his son, his mother and his father. I take into account the ties that the applicant has with these family members to whom he feels very close.

45.    The applicant’s wife gave written and oral evidence to the Tribunal. She has forgiven the applicant and wants to be with him. She has health and financial issues and will be greatly assisted if the applicant were released so that he could support her. She will be devastated if he is not released, but if he were removed to the Philippines she would join him once her son moves out of home. If she were to move to the Philippines then she would be separated from her children which would be devastating for her and her children.

46.    The applicant’s son is now 18 years old. The applicant is committed to seeking to repair their relationship and wants to be there for him. The impact of a non-revocation decision on the applicant’s son would be to remove the possibility of him re-establishing a relationship with his father. Further, I take into account that the applicant feels very close to his son who he helped raise. The applicant was a good father to his son, albeit that he has been removed from him since his son was 9 years old.

47.    The applicant’s mother would also be greatly impacted by a non-revocation decision in particular because she has multiple serious health issues and is in need of greater family support. She gave written and oral evidence to the Tribunal and said that she wants her son to provide support for her. She would be devastated if he were removed to the Philippines.

48.    The applicant’s father would also be adversely affected. He cares deeply for his son and has agreed to the applicant living with him upon his release.

…

[20]    The Tribunal then expressed the following, at T[67], under the heading “Conclusion as to ties to Australia”:

I conclude that the applicant has made a significant and commendable contribution to the Australian community through his employment for about 12 years. He has considerable ties to Australia through his family and because of the length of time he has been here. I take into account the devastating impact on his wife if he is not released, and also his son, mother and father. The strength, nature and duration of the applicant’s ties to the Australian community are a factor that weighs in favour of revoking the cancellation decision.

9    Paragraph 8.3 provides that, in applying this consideration:

8.3    The strength, nature and duration of ties to Australia

(1)    Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)    In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(3)    The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(4)    Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    the length of time the non-citizen has resided in the Australian community, noting that:

i.    considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

ii.    more weight should be given to the time the non-citizen has resided in Australia where the noncitizen has contributed positively to the Australian community during that time; and

iii.    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

10    The issue in this appeal is the construction of paragraph 8.3(2).

11    As mentioned above, Direction 99 has been revoked and replaced by Direction No 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024). Amongst other things, the iteration of subparagraph (2) of paragraph 8.3 that is the subject of this appeal has been removed. As such, this appeal involves interpreting a subparagraph that contained a consideration that no longer exists.

12    By his notice of appeal, the appellant raised two grounds:

(1)    the primary judge erred in finding that the Tribunal considered, and assigned more weight in favour of revocation to, the impact of its decision on the appellant’s immediate family members in Australia, where those family members were Australian citizens; and

(2)    in the alternative, the primary judge erred in finding that the Tribunal considered, and assigned more weight in favour of revocation to, the impact of the decision on the appellant’s son, where the son is an Australian citizen.

13    At the hearing of the appeal, the appellant abandoned the first ground.

14    The circumstances in which that occurred should be briefly explained. Before the Tribunal the appellant contended that paragraph 8.3(2) should be interpreted as set out in the first ground. That is, as requiring more weight in favour of revocation to the impact on the appellant’s immediate family members in Australia where those family members were Australian citizens. The primary judge records at J[9] that both the appellant and the Minister contended before the Tribunal that paragraph 8.3(2) of Direction 99 required the Tribunal to give “more weight” to the appellant’s ties with each of the appellant’s wife, son and parents. The primary judge dismissed the appeal on that basis. That is, the primary judge concluded that the Tribunal had given more weight to the appellant’s ties to his family members: J[23] – [34]. In doing so the primary judge then stated at J[35]:

As a final matter, I note that before the Tribunal, each of the applicant and the Minister contended that the effect of cl 8.3(2) was to require the Tribunal to give “more weight” to the applicant’s ties with his wife, son and parents. In this Court, the applicant’s case was based upon the same construction and the Minister has defended the application on the basis of that construction. In my view, it is far from clear that this is the correct construction of that clause. Construed in the context of cl 8.3 as a whole, and in particular cl 8.3(1), the better construction is that the decision-maker was required to consider a non-citizen’s ties to those of the non-citizen’s immediate family members who met the Australian connection criterion, and within that set of persons to give “more weight” to the non-citizen’s children. In view of the approach taken before the Tribunal and in this Court, it is unnecessary to resolve this issue of construction. In any event, an argument that the Tribunal failed to give “more weight” to the applicant’s ties to his son would fail for the same reasons.

15    However, the alternative construction postulated by the primary judge was one advocated for by the appellant below. It follows that the primary judge’s reference to there being a joint position consistent between both parties is incorrect.

16    In that context, the parties accepted that paragraph 8.3(2) was not to be interpreted in the manner proposed in ground 1 (i.e. applying to all immediate family members), a concession properly made. As a result the first ground was not pressed. That construction does not need to be further addressed. Rather, the parties submitted paragraph 8.3(2) should be applied in the manner described in ground 2, being that the Tribunal should have given more weight in favour of revocation to the impact of the decision on the child, where the child is an Australian citizen. That accords more with the observations of the primary judge at J[35]. There was however a dispute as to the practical application of paragraph 8.3(2).

17    The appellant submitted that paragraph 8.3 operates in two steps. First, paragraph 8.3(1) requires the decision-maker to consider the impact of the decision on the non-citizen’s immediate family members who are Australian citizens, Australian permanent residents, or persons who have a right to remain in Australia indefinitely. Second, paragraph 8.3(2) requires that more weight be given to the non-citizen’s ties to his or her child and/or children who meet that Australian connection criterion. On the other hand, the Minister submitted the natural meaning of paragraph 8.3(2) is directed towards more weight being given to the non-citizen’s ties to his or her Australian citizen children, Australian permanent resident children or children who have a right to remain in Australia indefinitely, than to his or her children who do not have a right to remain in Australia permanently, such as children only holding temporary visas or who are here unlawfully. It was submitted that so read, the issue of “more weight” again does not arise as the appellant only had one Australian citizen child. In oral submissions the Minister accepted that the circumstances postulated (other children holding temporary visas or here unlawfully) might not arise often.

18    In YNPX v Minister for Immigration and Multicultural Affairs [2025] FCA 49 at [29], O’Bryan J observed:

It can be seen that para 8.3 raises a number of considerations under the general subject area of a non-citizen’s “ties to Australia”. First, para 8.3 is concerned with the impact of the decision on the non-citizen’s immediate family members in Australia (subpara (1)). Second, para 8.3 is concerned with the non-citizen’s ties to their children in Australia (subpara (2)). That consideration would appear to be focussed on the impact on the non-citizen of being separated from their children, because the interests of the children are separately considered under para 8.4. Third, para 8.3 is concerned with the non-citizen’s social links generally with Australian citizens or residents (subpara (3)). Fourth, para 8.3 requires the decision-maker to consider “any other ties” and, in doing so, consider the length of time the non-citizen has resided in the Australian community and, amongst other things, consider whether the non-citizen has been ordinarily resident in Australia during and since their formative years (subpara (4)).

19    We respectfully agree.

20    As a starting point it should be observed that the terms of paragraph 8.3(1) and 8.3(2) are different. The first is directed to the impact on the applicant’s immediate family, the second, the applicant’s ties to the child. The first is focussed from the point of view of the immediate family, the second, from the applicant’s point of view. In that context, and reading paragraph 8.3 as a whole, paragraph 8.3(1) and (2) are not to be linked such as to alter the focus of paragraph 8.3(2). It follows that insofar as the second ground alleges a construction which is directed to the impact on the child, it cannot be accepted.

21    The Minister’s construction of paragraph 8.3(2) also cannot be accepted. The whole focus of paragraph 8.3 is on the applicant’s ties to Australia. The ties to persons in Australia (which are addressed in paragraph 8.3(1)-(3)) relate to persons who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. An applicant’s child who has no such status would not fall within the paragraph. That said, such a child may fall within paragraph 8.4, if there is a relationship with the applicant.

22    As best as can be discerned, paragraph 8.3(2) read in context reflects an applicant’s tie to a child as a more significant relationship (if one exists) than others, and therefore more weight is given to it. In so far as the appellant submits the provision necessarily means in any given case more weight is given to the ties to the child in paragraph 8.3(2) than ties to other family members in paragraph 8.3(1), that cannot be correct. It would not necessarily mean more weight is ultimately attached to the tie to the child than in relation to other persons. It must depend on the facts. If a tie to a child is weak, even where more weight is given to that tie, it might not carry more weight than ties to other persons. Paragraph 8.3(2) does not require the greatest weight to be given to an applicant’s ties to their child.

23    Turning to this case, the appellant has a son who was 18 years old at the time of the Tribunal making its decision. The appellant’s son is an Australian citizen. That raises the issue of the meaning of the word child in paragraph 8.3(2). That is, whether it is confined to a person under 18 years or includes an adult.

24    For the purposes of the Migration Act, “child” includes a child within the meaning of the Family Law Act 1975 (Cth): see s 5CA(1)(a). By the combined operation of ss 4 and 100B of the Family Law Act, a “child” means a child under 18 years of age. However, s 5CA is an inclusive definition which starts with the words “Without limiting who is a child of a person for the purposes of this Act, each of the following is the Child of a person” (emphasis in original).

25    The appellant submitted the word “child” in paragraph 8.3(2) refers to any child of a person who falls within the scope of paragraph 8.3(2), irrespective of age. In support the appellant drew attention to paragraph 8.4 of Direction 99, which is concerned with the “Best interests of minor children in Australia affected by the decision”. Paragraph 8.4(2) expressly provides that this consideration applies only where the child is under 18 years of age at the time when the relevant decision is made. The appellant submitted the express limitation in paragraph 8.4(2) shows that where the Minister intended to confine a consideration to children under 18, it was made explicit, and that, as no such limitation appears in paragraph 8.3(2), it does not have the same age limitation.

26    The appellant is correct that 8.4 refers to “minor children”, the consideration being the best interests of any minor children. However, the appellant’s counsel accepted the meaning of the word “child” as used in Direction 99 is a contextual matter that is not necessarily resolved by reference alone to the express use of the term “minor children” in paragraph 8.4. The term should be read in its context.

27    For example, the Court referred counsel to paragraph 8.5(2)(c), which refers to the commission of serious crimes against “women, children or other vulnerable members of the community” and also makes no reference to an age limitation. The appellant’s counsel properly accepted that the reference to “children” in that provision was, in context, likely to refer to minor children.

28    The Minister also submitted that child in paragraph 8.3(2) was not confined to minor children, and that there is no policy reason why it would be. That is, the appellant submitted there is no reason why, as a matter of policy, children would be regarded as “more important than wives or parents”. Having submitted that, the Minister also accepted that there was a strong argument that it was referring to minor children.

29    The submission as to policy does not advance the construction of the provision, as the same could be said whether the child is an adult or a minor.

30    It may be accepted that the Direction is not clear. Having considered the term child in paragraph 8.3(2) in its context, we consider the better view is that it refers to a child under 18 years old. This may be in recognition that, from a parent’s perspective, their parental tie with a child of that age is of particular importance. It is not unusual for adult children to live in different locations or have greater independence from their parents.

31    For these reasons, when read in the context of paragraph 8.3 and Direction 99 as a whole, the term “child”, as it appears in paragraph 8.3(2), should be construed as referring to a child of the non-citizen who falls within the scope of that paragraph and is under the age of 18.

32    The consequence of that construction is that, as the appellant’s son was aged 18 years and nine months at the time the relevant decision was made by the Tribunal, paragraph 8.3(2) was not enlivened. We note the Tribunal was cognisant of the fact the appellant’s son was over 18 years old. Nonetheless, the impact on the appellant’s son, and the appellant’s ties to him, fell within paragraph 8.3(1) and were taken into account by the Tribunal (see [8] above).

33    It follows ground 2 must be dismissed.

Disposition

34    For these reasons, the appeal is dismissed with costs.

Associate:

Dated: 21 May 2026    

REASONS FOR JUDGMENT

YOUNAN J:

INRODUCTION

35    By notice of appeal filed on 3 November 2025, the appellant appeals from the decision of the primary judge in the Federal Court of Australia on 23 October 2025 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal: HKRC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 1288 (primary judgment or PJ). On 17 May 2024, the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) not to revoke the mandatory cancellation of the appellant’s Resident Return (Class BB) (Subclass 155) visa (visa) under s 501(3A) of the Migration Act 1958 (Cth): HKRC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 1119 (Tribunal decision or T).

36    The issue on appeal is one of construction of a Ministerial direction as to the weight to be given to the primary consideration of the strength, nature and duration of the appellant’s ties to Australia, in determining whether to revoke the mandatory cancellation decision.

FACTUAL BACKGROUND

37    The factual background of the matter is set out at paragraphs [1]-[2], and [11] of the primary judgment, and in the Tribunal’s decision at paragraphs [2]-[4] and [17]-[20]. Those aspects salient to the present appeal are outlined below.

38    The appellant is a citizen of the Philippines and arrived in Australia in January 2001, at 20 years of age. In 2003, the appellant commenced a relationship with his wife, who had a daughter and son from a previous relationship. The appellant and his wife had a son in August 2005.

39    On 25 August 2017, the appellant was sentenced to ten years and six months’ imprisonment after pleading guilty to sexual offences committed against his step-daughter.

40    Subsequently, on 25 May 2020, the appellant’s visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Act (mandatory cancellation decision). The mandatory cancellation decision was due to the appellant’s failure to pass the character test, by reason of having a substantial criminal record for the purposes of the Act, having been sentenced to a term of imprisonment of 12 months or more: s 501(6)(a), (7)(c) of the Act.

41    The appellant sought revocation of the mandatory cancellation decision. On 19 December 2022, a delegate of the Minister refused to revoke the mandatory cancellation decision under s 501CA(4) of the Act.

42    The appellant sought review of that decision in the Tribunal. On 17 May 2024, the Tribunal affirmed the decision of a delegate of the Minister not to revoke the mandatory cancellation decision.

GROUNDS OF APPEAL

43    The notice of appeal raises two grounds of appeal:

(1)    the primary judge erred in finding that the Tribunal considered and assigned more weight in favour of revocation to the impact of its decision on the appellant’s immediate family members in Australia, where those family members were Australian citizens as required by para 8.3(2) of Direction No. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99); and

(2)    in the alternative, the primary judge erred in finding that the Tribunal considered and assigned more weight in favour of revocation to the impact of the decision on the appellant’s son, where the son is an Australian citizen in accordance with para 8.3(2) of Direction 99.

44    Both grounds of appeal take issue with the Tribunal’s application of para 8.3(2) of Direction 99. Direction 99 has since been revoked: para 3 of Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110). Paragraph 8.3(2) of Direction 99 is now obsolete; it has not been retained in Direction 110.

45    Direction 99 is a Ministerial direction made under s 499(1) of the Act. The Tribunal is required to comply with such directions: s 499(2A) of the Act. The appellant contends that the Tribunal failed to comply with para 8.3(2) of Direction 99, thereby resulting in jurisdictional error: Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115; 293 FCR 509 at [122]. The appellant contends that jurisdictional error may arise where there is material before the Tribunal that renders a consideration manifestly relevant, and that consideration is not taken into account, such that the Tribunal failed to conduct the review as required by the Act: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [61]-[68] (French CJ, Kiefel, Bell and Keane JJ).

LEGAL PRINCIPLES

46    The Minister has the power to revoke a decision to cancel a visa under s 501(3A) of the Act where the Minister is satisfied that: (a) the appellant passes the character test in s 501 of the Act; or (b) there is “another reason” why the mandatory cancellation decision should be revoked: s 501CA(1), (4)(b) of the Act.

47    Before the Tribunal, there was no dispute between the parties that the appellant did not pass the character test. The only issue was whether there was “another reason” why the mandatory cancellation decision should be revoked.

48    The principles relevant to whether there is “another reason” to revoke a mandatory cancellation under s 501CA(4)(b)(ii) of the Act are identified in Direction 99: para 5.1(3), (4) of Direction 99. Relevantly, para 5.2(6) of Direction 99 provides that in approaching the task of whether to revoke a mandatory cancellation under s 501CA of the Act, decision-makers (i.e., the Tribunal) must take into account the primary considerations relevant to the individual case.

49    The “primary considerations” should “generally be given greater weight than the other considerations”: para 7(2) of Direction 99. In particular, the Tribunal “must take into account the considerations identified in sections 8 and 9, where relevant to the decision”: para 6 of Direction 99.

50    The “primary considerations” are set out at s 8 of Direction 99, which provides:

8.    Primary considerations

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 strength, nature and duration of ties to Australia;

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

(5)    expectations of the Australian community.

51    The “primary consideration” relevant to this appeal is the “strength, nature and duration of ties to Australia”: para 8(3) of Direction 99. The factors relevant to this consideration are set out at para 8.3 of Direction 99, which provides:

8.3    The strength, nature and duration of ties to Australia

(1)    Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)    In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(3)    The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(4)    Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    the length of time the non-citizen has resided in the Australian community, noting that:

i.    considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

ii.    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

iii.    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

52    This appeal ultimately turns on the construction of para 8.3(2) of Direction 99.

CONSTRUCTION OF PARAGRAPH 8.3(2) OF DIRECTION 99

Two alternative constructions of paragraph 8.3(2)

53    The first and second grounds of appeal reflect two alternative constructions of para 8.3(2) of Direction 99. As set out below, the parties’ submissions on the correct construction of para 8.3(2) has evolved throughout the history of this proceeding.

(i) “More weight” to ties with immediate family members

54    At the hearing before the Tribunal, the parties proceeded on the basis that para 8.3(2) of Direction 99 was to be construed as posited in the first ground of appeal: viz., that “more weight” was to be given to the non-citizen’s ties to his or her immediate family members who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely (PJ [9]).

55    There is an aberrant reference to para 8.3(3) (concerning family or social links generally) in the appellant’s statement of facts, issues and contentions (before the Tribunal), and again in the Amended Originating Application in the court below, which has contributed to the confusion, and which I assume is a typographical error. As much was confirmed on appeal.

56    Under this construction, it was contended that para 8.3(2) applied such that “more weight” was required to be given to all four of the non-citizen’s immediate family members: his parents, wife and son (all of whom were Australian citizens).

57    That same construction was posited by both parties at the hearing before the primary judge (PJ [35]).

58    That construction appears to have proceeded on a view that the reference to “people who have a right to remain in Australia indefinitely” in para 8.3(2) represents a “shift from children to people”, such that the broader inclusion of the non-citizen’s family was “available as a matter of grammar”. That view is mistaken.

59    The reference to “people who have a right to remain in Australia indefinitely” appears in para 8.3(1), (2), and (3). The reference to “people” is a generic description of the categories of persons referred to in those paragraphs. In the context of para 8.3(1) and (2), that is a generic reference to “immediate family members” and “children”, respectively. To suggest that those “people” need not be “immediate family members” in para 8.3(1), nor “children” in para 8.3(2), would be to undermine the utility of the distinction drawn between: (a) immediate family members in para 8.3(1) and “child and/or children” in para 8.3(2); and (b) immediate family members in para 8.3(1) and “people” who are not, such as those who are the subject of “family or social links generally” in para 8.3(3).

60    The primary judge considered a “better construction” of para 8.3(2) to be that the decision-maker is required to consider a non-citizen’s ties to those of the non-citizen’s immediate family members who meet the “Australian connection criterion”, and within that set of persons to give “more weight” to the non-citizen’s children (at [35]). In the end, his Honour held that it was unnecessary to resolve this issue of construction in view of the approach taken before the Tribunal and in the primary proceeding.

(ii) “More weight” to ties with “child and/or children”

61    The appellant contends that it also ran a second, alternative construction of para 8.3(2) in the primary proceeding. The appellant submits that this alternative construction was only briefly, but not substantively, addressed in the primary judgment: PJ [35]. The appellant drew the Court’s attention to the transcript of the primary proceeding, which makes clear that the appellant submitted that an alternative construction was available: viz., that “more weight” was to be given to the non-citizen’s ties to his or her child and/or children who are either: (a) Australian citizens; (b) Australian permanent residents; and/or (c) people who have a right to remain in Australia indefinitely. Under this construction, it was contended that para 8.3(2) applied such that “more weight” was required to be given to the non-citizen’s ties to his son (who is an Australian citizen).

62    The second construction is reflected in the second ground of appeal in this proceeding, and the appellant concedes that it is the “more likely” construction. The appellant contends that this Court ought not to be bound by the approach taken by the Tribunal (even where the parties, together, may have advanced a mistaken construction of para 8.3(2) before the Tribunal): Szajna v Australian Postal Corporation [2014] FCA 1136; 226 FCR 1 at [44] (Rangiah J), citing Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 64; 54 FLR 334 at 343 (Bowen CJ); see also Toia v Minister for Immigration and Citizenship [2009] FCAFC 79; 177 FCR 125 at [52]-[59] (Stone and Jacobson JJ, Moore J agreeing at [1]). The appellant submits that, ultimately, it is a matter of discretion of this Court as to whether the second construction can be advanced on appeal.

63    The Minister similarly submitted on appeal that the second construction is correct, relying on the decision of YNPX v Minister for Immigration and Multicultural Affairs [2025] FCA 49, in which O’Bryan J at [29] describes para 8.3(2) as being “concerned with the non-citizen’s ties to their children in Australia”.

64    The conduct of the parties before the Tribunal may go to the discretion of the Court as to whether to grant relief, but it cannot prejudice the proper construction of para 8.3(2) of Direction 99.

65    I consider that O’Bryan J was correct in YNPX to find (at [29]) that para 8.3(2) is concerned with the non-citizen’s ties to their child and/or children in Australia, such that “more weight” is to be given to those ties, and not to ties with other members of the non-citizen’s immediate family. There is no such prescription in para 8.3(2) (alone or in connection with para 8.3(1)).

66    This finding undercuts Ground 1 of the appeal, which is predicated on the first alternative construction, viz., that para 8.3(2) required “more weight” to be given to all four of the non-citizen’s immediate family members. It did not. As such, the ground fails, irrespective of the primary judge’s finding (at PJ [32]) that an inference that the Tribunal did not give “more weight” to the appellant’s ties with his wife, son and parents is not readily available, and that an attribution of “more weight” sits comfortably within the bounds of the language used by the Tribunal.

67    In my view, it is not evident from the Tribunal’s reasons that it did give “more weight” to the appellant’s ties with his immediate family, or the appellant’s ties with his son. This is consistent with a correct understanding of para 8.3(2).

Construction of “child and/or children”

68    As concluded above, para 8.3(2) of Direction 99 applies only in relation to a non-citizen’s ties to “his or her child and/or children”, as posited in the second ground of appeal. The reference to “child and/or children” gives rise to a secondary issue of construction, which is pertinent in circumstances where the appellant’s son was, at the time of the Tribunal’s decision, 18 years of age.

69    Prior to the hearing of the appeal on 16 March 2026, the Court invited the parties to address the Court on the meaning of “child” in para 8.3(2) of Direction 99, and whether the appellant’s son was a child within the meaning of that paragraph.

70    It is common ground between the parties that the reference to “child and/or children” in para 8.3(2) of Direction 99 is a reference to the children of the non-citizen, “whatever the age, whether minor or adult”. The appellant emphasises that it is the relationship between parent and their daughter or son that is paramount. In support of this submission, the appellant relied on: (a) a contextual reading para 8.3(2) in light of para 8.4 of Direction 99; and (b) the definition of “child of a person” in s 5CA of the Act.

71    As explained below, I take a different view.

Best interests of minor children

72    First, the appellant drew the Court’s attention to para 8.4 of Direction 99, titled “Best interests of minor children in Australia affected by the decision”, and in particular para 8.4(2), which makes reference to a “child…under 18 years old”. The appellant contends that had it been intended for para 8.3(2) to apply to children under 18 years of age, it would have picked up the language used in para 8.4(2) (which expressly refers to “minor children”). Paragraph 8.4(2) relevantly provides:

8.4    Best interests of minor children in Australia affected by the decision

…

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

73    The Court drew the appellant’s attention to para 8.5(2)(c) of Direction 99, which also makes reference to “children”. That paragraph relevantly states (with emphasis added):

8.5    Expectations of the Australian Community

…

(2)    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

…

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

74    The appellant conceded that the reference to “children” in para 8.5(2)(c), in the context of considering the “commission of serious crimes against women, children or other vulnerable members of the community”, is likely a reference to minor children.

75    This is significant, as it rebuts the orthodox presumption of construction that, by virtue of express mention of “minor children” in para 8.4 of Direction 99, all other references to “children” in the Direction are not so constrained. It highlights that context is key.

76    There are other references in Direction 99 to “child” or “children” which, in context, suggest that they are references to minor children. For example, in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct, decision-makers are required to have regard to “crimes of a violent nature against women or children, regardless of the sentence imposed” (para 8.1.1(1)(a)(ii)). It is evident that the reference to “children” is to “minor children”. This is because, in the context of para 8.1.1, what is sought to be acknowledged and protected is the vulnerability of the objects of criminal conduct, not the relationship between child and parent. The same may be said of the various references to “child” or “children” in para 8.4. The internal context of that paragraph, including the heading, makes it plain that the reference is to minor children. It is not necessary to determine this question in the context of the consideration of family violence, as Direction 99 expressly acknowledges the vulnerability of family members, including children, who are financially dependent on the non-citizen (see definition of “family violence” in para 4(1) and the reference to “children” in para 8.2(3)(c)(ii)).

Definition of “child”

77    Second, the appellant submits that the reference to “child and/or children” in para 8.3(2) should be construed in light of the definition of “child” under s 5CA of the Act, which is not limited to persons under the age of 18.

78    Relevantly, notation 1 of s 4 of Direction 99 makes reference to s 5 of the Act:

4.    Interpretation

Note 1: A number of expressions used in this Direction are defined in section 5 of the Act, including immigration detention, minor, non-citizen, remove, substantive visa, visa applicant, visa holder.

79    The appellant submits that notation 1 is non-exhaustive, such that regard may be had to s 5 of the Act to define “child” (and “children”) for the purposes of para 8.3(2) of Direction 99. Section 5 of the Act defines “child of a person” by reference to s 5CA of the Act:

child of a person has a meaning affected by section 5CA.

80    Section 5CA of the Act provides a non-exhaustive definition of “child of a person”:

5CA    Child of a person

(1)    Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

(a)    someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

(b)    someone who is an adopted child of the person within the meaning of this Act.

(2)    The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

(3)    Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.

81    It is significant that s 5 of the Act provides that “child” of a person has a meaning “affected by section 5CA” (as distinct from the “meaning given by” that section). This underscores the inclusivity of that section. It also acknowledges the particular application of s 5CA in terms of prescribing “who is a child of a person” for the purposes of the Act. That is, the provision is directed to the relationship of parent and child (and, in the case of an adopted child, expands the notion beyond birth ties).

82    Section 5CA(1)(a) of the Act cross-references s 4 of the Family Law Act 1975 (Cth), which states:

child:

(a)    in Part VII, includes an adopted child and a stillborn child; and

(b)    in Subdivision E of Division 6 of that Part, means a person who is under 18 (including a person who is an adopted child).

child:    Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person or is a child of a marriage or other relationship.

Note:    In determining if a child is the child of a person within the meaning of this Act, it is to be assumed that Part VII extends to all States and Territories

83    The appellant submits that s 4 of the Family Law Act defines “child” as a minor, but only in certain parts of the legislation. The appellant contends that as a result, para 8.3(2) should be construed as applying to a non-citizen’s ties to his or her “child” or “children”, irrespective of the age of the “child” or “children”. Consequently, whilst the appellant’s son was 18 years of age at the time of the Tribunal’s decision, para 8.3(2) of Direction 99 would have still been engaged.

84    The Minister conceded that there was “force” in the argument that para 8.3(2) refers to minor children, however ultimately did not contend for such a construction. The Minister agreed with the appellant that the reference to “child and/or children” in para 8.3(2) of Direction 99 is a reference to “all children”.

85    The appellant’s contention does not follow from the definition of “child” in s 4 of the Family Law Act. The definition is inclusive (of adopted and stillborn children). The prescription in relation to Subdiv E of Div 6 of Part VII of the Family Law Act (which relates to obligations under parenting orders relating to taking or sending children from Australia) underscores the importance of context. It does not mean that, but for Subdiv E of Div 6 of Part VII of the Family Law Act, the reference to “child” is expansive, and not limited to minor children (see, e.g., s 100B(3), which relates to a “child” swearing an affidavit, being called as a witness or being present during court proceedings, and is said to mean a child under 18 years of age). The meaning of the term will depend on the context in which the term appears.

Context: relationship of paragraph 8.3(1) and (2)

86    Notwithstanding the submission that the reference to “child and/or children” in para 8.3(2) is a reference to “all children”, the Minister contends that para 8.3(2) should be read as requiring “more weight” to be given to the non-citizen’s ties to his or her child who is an Australian citizen, Australian permanent resident and/or has a right to remain in Australia indefinitely, as opposed to a child who does not have a right to remain in Australia permanently (i.e., a child who is an unlawful resident or holder of a temporary visa). The Minister submits that this construction was not one that was previously before either the Tribunal or the primary judge. On this construction, the issue of “more weight” in para 8.3(2) does not arise as the appellant only had one child who was an Australian citizen, and did not have any children who were not Australian citizens or who were holders of temporary visas. Thus, the necessary comparison cannot be made.

87    The appellant submits that under the Minister’s construction, para 8.3(2) would have no work to do except in a “rare circumstance” where the non-citizen has multiple children in Australia, with different residential status: i.e., the non-citizen has both (a) a child who is an Australian citizen/permanent resident and/or has a right to remain in Australia indefinitely; and (b) a child in Australia who has a temporary residential status. The appellant submits that a better construction is one where para 8.3(2) is read as dealing with a sub-set of the immediate family members identified by way of para 8.3(1).

88    In my view, the context of para 8.3(2) suggests that the reference to “child and/or children” is a reference to minor children. This is underscored by the relationship between para 8.3(1) and (2). The former is concerned with the impact of the decision on immediate family members. The latter reflects that concern, in part, “[i]n considering a non-citizen’s ties to Australia”, and in particular a non-citizen’s ties to his or her minor child and/or children, a subset of the category in para 8.3(1).

89    There is no indication in para 8.3 of Direction 99, or the Direction more broadly, of an intention to preference or privilege the parental relationship beyond that involving minor children. Moreover, it is antithetical to the exercise in para 8.3, which is to consider the non-citizen’s ties to Australia by way of immediate family members, children, family or social links generally, and “any other ties”. The exercise is to examine, not assume, the strength of those ties.

90    Consistent with a concern to examine any impact of a decision on the subjects of those ties, para 8.3(2) acknowledges the special position of (minor) children, not simply by virtue of their membership of the non-citizen’s immediate family, which is acknowledged in para 8.3(1) irrespective of age, but by virtue of their vulnerability. It requires the decision-maker to give “more weight” to that parental relationship.

Context: relationship of paragraphs 8.3(2) and 8.4

91    In that regard, I take a different view from that of O’Bryan J in YNPX at [29] that para 8.3(2) “would appear to be focussed on the impact on the non-citizen of being separated from their children, because the interests of the children are separately considered under para 8.4”. There are two aspects to this finding: (a) the focus of the provision; and (b) the reason for it.

92    The subject of para 8.3(2) is the “non-citizen’s ties to Australia” by way of the non-citizen’s ties to his or her child and/or children (with the prescribed Australian connection). In considering that tie or relationship, it is necessary to consider both the impact of the relationship on the non-citizen and on the child.

93    In my view, the need to consider the impact on both subjects of the relationship is not negated by the coverage of para 8.4. For one, it is not possible to consider the fabric of the relationship between parent and child, without considering the impact on both. In the end, it may not be useful to use the language of “impact” on the subjects of the relationship as distinct from the relationship itself, which is symbiotic, and not always mutually beneficial.

94    Furthermore, insofar as it applies to minor children, para 8.3(2) is not coterminous with para 8.4. Paragraph 8.4 is addressed to a different “child”, albeit one under 18 years old (para 8.4(2)). Paragraph 8.4(1) is concerned with “a child affected by the decision”, so its scope is potentially broader than the “child and/or children” the subjects of para 8.3(2), who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. There is no such prescription in para 8.4, although the heading suggests that the minor children are (more broadly) “in Australia”. This may be taken into consideration in determining the scope of para 8.4: see Silk Bros Pty Ltd v State Electricity Commission (Vic) [1943] HCA 2; 67 CLR 1 at 16 per Latham CJ; Rich J agreeing at 18; McTiernan J agreeing at 23.

95    In considering the best interests of the child, the decision-maker must consider the nature and duration of the relationship between the (minor) child and non-citizen (para 8.4(4)(a)). As the corollary of para 8.3(2), “[l]ess weight should generally be given where the relationship is non-parental”. This underscores the importance that is attached to the parental relationship where the child is a minor.

96    Nevertheless, the question or exercise in para 8.4 is different from that in para 8.3(2). The former requires the decision-maker to determine whether the relevant decision is “in the best interests” of a child affected by the decision, reflecting Australia’s fundamental obligation under the Convention on the Rights of the Child, which is not limited to those who have a right to remain in Australia indefinitely (Article 2(1)): see Pilkington (Australia) Ltd v Minister for Justice and Customs [2002] FCAFC 423; 127 FCR 92 at [25]. The latter requires “more weight” to be accorded to the non-citizen’s ties to his or her child and/or children who have such a right.

97    This means that “more weight” should be afforded to this relationship between parent and (minor) child than would otherwise be the case in the absence of para 8.3(2), i.e., more so than any ties with other immediate family members in Australia, including adult children (which ties are the subject of para 8.3(1)). This does not mean that the quality of the relationship cannot be considered; it must be, and it may affect the weight to be afforded to this relationship. “More” does not necessarily mean the “most”.

APPLICATION OF PARAGRAPH 8.3(2) BY THE TRIBUNAL

98    The Minister accepts that if para 8.3(2) deals only with minor children, then it does not apply in the present case as the appellant’s son was 18 years of age at the time of the Tribunal’s decision.

99    This is acknowledged by the Tribunal, who considered the impact of a non-revocation decision on the applicant’s son (T [46]), but does not otherwise afford “more weight” to that impact within the meaning of para 8.3(2). This is reflected in the Tribunal’s conclusion at paragraph [68] that there were no minor children affected by the decision. This is further reflected in the approach taken by the Tribunal, which applied para 8.3(1) of Direction 99 and held at paragraph [67]:

He has considerable ties to Australia through his family and because of the length of time he has been here. I take into account the devastating impact on his wife if he is not released, and also his son, mother and father. The strength, nature and duration of the applicant's ties to the Australian community are a factor that weighs in favour of revoking the cancellation decision.

100    Therefore, notwithstanding the submissions of the parties before the Tribunal, there is no reason to find that the Tribunal considered that para 8.3(2) applied in the circumstances where the appellant’s son was not a minor. Accordingly, I do not agree with the finding of the primary judge implicit in PJ [32]-[33] that para 8.3(2) applied in the present circumstances.

101    The appellant submits that, absent any express consideration of para 8.3(2) in the Tribunal’s decision, or any differentiation between the treatment of the appellant’s ties with his son and the appellant’s ties with other immediate family members, the natural inference is that the Tribunal did not consider giving “more weight” to the appellant’s ties with his son.

102    If that is so, for the reasons outlined above, para 8.3(2) is not engaged in the circumstance where the appellant’s son was 18 years of age at the time of the Tribunal’s decision, and so there is no error in that approach.

103    There is, therefore, no cause to consider what it means to give “more weight” to the appellant’s ties with his son, in circumstances where the Tribunal found that the appellant was seeking to re-establish and “repair” that relationship (T [46]).

104    It follows that Ground 2 of the appeal is rejected.

CONCLUSION

105    For the foregoing reasons, I agree with the orders proposed by Abraham and Downes JJ.

Associate:

Dated: 21 May 2026