Federal Court of Australia

Samuelu v Minister for Immigration and Citizenship [2026] FCAFC 100

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The appeal is dismissed.

3.    The Appellant is to pay the First Respondent’s costs, to be assessed in default of agreement.

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

REASONS FOR JUDGMENT

THE COURT:

introduction

1    This is an appeal from a decision by a judge of this Court: Samuelu v Minister for Immigration and Multicultural Affairs [2025] FCA 1510 (J). The primary judge dismissed an application to review a decision of the Second Respondent (the Tribunal), which affirmed a decision by a delegate of the First Respondent (the Minister) made under s 501CA of the Migration Act 1958 (Cth) not to revoke the cancellation of the Appellant’s visa.

2    In the appeal, the Appellant repeats two of the arguments put to the primary judge:

    First, the Appellant contends that the Tribunal erred in its consideration of the protection of the community, by giving adverse weight to the seriousness of any future offending, divorced from the likelihood of that offending occurring.

    Second, the Appellant contends that the Tribunal erred in its consideration of ties to Australia, because it failed to assess the impacts of removal on the Appellant’s immediate family and on him, and failed to make a finding about the periods that the Appellant had made a positive contribution to the community.

3    Those arguments should be rejected, essentially for the reasons given by the primary judge.

background

Arrival in Australia and grant of visa (1998, 2016)

4    The Appellant is a citizen of Samoa and New Zealand. He emigrated to Australia in 1998 when he was 17 years old. In September 2016, he was granted a Class TY Subclass 444 Special Category (Temporary) visa (J [2]).

Appellant sentenced to 2 years, 9 months’ imprisonment (January 2022)

5    On 17 January 2022, the Appellant pleaded guilty to multiple offences, including aggravated burglary, criminal damage, making threats to kill, and contravention of a family violence order, and was sentenced to a total of two years, nine months’ imprisonment, with a non-parole period of 20 months (J [12]-[13]). This offending occurred in April 2021, and involved family violence against his former partner (J [6]). At the time of this offending, the Appellant was the subject of an interim intervention order that protected his former partner. He committed criminal damage and unlawful assault in December 2018, in the context of family violence against his former partner (J [4]-[5]).

Appellant’s visa cancelled, decision not to revoke cancellation (March 2022, August 2024)

6    On 10 March 2022, the Appellant’s visa was mandatorily cancelled under s 501(3A) of the Act. On 5 April 2022, the Appellant sought revocation of that cancellation decision (J [14]-[15]).

7    On 19 August 2024, a delegate of the Minister decided under s 501CA of the Act not to revoke the cancellation of the Appellant’s visa. On 23 August 2024, the Appellant applied to the Tribunal for merits review of that decision.

Tribunal affirms non-revocation decision (November 2024)

8    On 11 November 2024, the Tribunal affirmed the decision not to revoke the cancellation of the Appellant’s visa (J [17]). The Tribunal applied Ministerial Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (see Tribunal reasons (ART) [18]-[19]). The relevant parts of the Tribunal’s reasons are set out when considering the Appellant’s arguments.

Application for judicial review dismissed (December 2025)

9    On 9 December 2024, the Appellant applied to this Court for judicial review of the Tribunal’s decision. The Appellant was given leave to rely on a further amended application dated 22 April 2025. Relevantly to this appeal, grounds 1 and 3 of the further amended application were as follows:

    Ground 1 contended that, in considering “protection of the Australian community”, the Tribunal misunderstood and misapplied the law, attributing adverse weight on the ultimate issue when not able to do so (J [30]).

    Ground 3 contended that the Tribunal acted unreasonably or irrationally in its consideration of the material, and ignored, overlooked, misunderstood, or unreasonably failed to evaluate or consider relevant evidence and clearly articulated submissions before it (J [59]). The most significant of the issues raised by Ground 3 concerned para 8.3 of Direction No 110, which required the Tribunal to consider the strength, nature and duration of ties to Australia as a “primary consideration” (see J [76]).

10    On 3 December 2025, the primary judge dismissed the application for judicial review.

Appeal to Full Court (December 2025)

11    On 29 December 2025, the Appellant filed a notice of appeal against the decision of the primary judge. That notice contains two grounds of appeal:

1.     The learned primary judge erred in failing to find error in the Tribunal’s consideration of paragraph 8.1 of Direction 110 (Protection of the Australian community).

Particulars

a.     At [42], the learned primary judge erred in construing the Administrative Review Tribunal’s (the Tribunal’s) attribution of weight to the nature and seriousness of the Appellant’s offending as an “interim view”.

b.     In fact, the Tribunal impermissibly (at [48] of its decision) attributed adverse weight to the nature and seriousness of the Appellant’s offending independently of its subsequent assessment of the risk that the Appellant posed of repeating that offending (or similar behaviour).

c.     The learned primary judge failed to consider the Tribunal’s erroneous attribution of weight at [48] of the Tribunal’s decision, focusing on [55].

d.     The Tribunal’s approach was inconsistent with a proper construction of paragraph 8.1 of Direction 110, which is protective, not punitive.

2.     The learned primary judge erred in failing to find error in the Tribunal’s consideration of paragraph 8.3 of Direction 110 (Strength, nature and duration of ties to Australia).

Particulars

a.     The Tribunal purported to consider paragraph 8.3 at [84]-[89] of its reasons.

b.     Paragraph 8.3 of Direction 110 directs a decision-maker’s consideration of a noncitizen’s ties to Australia in two ways (per Siale v Minister for Immigration and Citizenship [2025] FCA 608 at [52]).

i.     First, under 8.3(1), it directs attention to the impact of a non-citizen’s removal on immediate family members who are Australian or who have an indefinite right to remain in Australia.

ii.     Secondly, under 8.3(2), it directs attention to the impact on the non-citizen of the loss of any other ties to the Australian community.

c.     In relation to paragraph 8.3(1), contrary to the learned primary judge’s conclusions at [87] and [95], a fair reading of the Tribunal’s reasons reveals that it failed to take into account or assess the impacts of the Appellant’s removal on his immediate family members, despite these impacts being a cornerstone of the Appellant’s case for establishing “another reason” under section 501CA(4)(b)(ii). Being aware of the current and past nature of the relationships between the Appellant and his immediate family members (e.g. at [85]-[87] of the Tribunal’s reasons) did not constitute an assessment of the impacts on each of them should the Appellant be removed from Australia.

d.     In relation to paragraph 8.3(2), the Tribunal failed to consider or assess the impact of removal on the Appellant. Further, and contrary to the learned primary judge’s conclusions at [99], the Tribunal failed to take into account the extent of time that the Appellant had spent contributing positively to the community as mandatorily required under paragraph 8.3(2)(a)(ii) in assessing the weight to be attributed to this consideration. This precluded the ability of the Tribunal to make a correct assessment of weight to be attributed to the impact on the Appellant of his removal under paragraph 8.3(2).

consideration

12    An appeal to this Court is by way of rehearing, meaning that the Appellant must demonstrate legal, factual or discretionary error by the primary judge. However, when the appeal is from an unsuccessful judicial review application, the Full Court asks whether the primary judge was correct to find that the initial decision (here, of the Tribunal) was not affected by jurisdictional error: see CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [3] (the Court). If there is no jurisdictional error in the initial decision, then there is no utility in setting aside the judgment under appeal, even if the primary judge has committed some error: DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; (2019) 268 FCR 64 at [63] (Rangiah J, with Reeves and Bromwich JJ agreeing).

13    Consistently with that analysis, the asserted error of the primary judge here is not accepting the Appellant’s arguments that the Tribunal’s decision contained jurisdictional error. It is therefore convenient to focus on the Tribunal’s reasons for its decision.

Appeal ground 1: Whether Tribunal impermissibly gave adverse weight to an interim finding on the nature and seriousness of the Appellant’s offending

14    Appeal ground 1 contends, in substance, that the Tribunal in ART [48] and [55] impermissibly attributed adverse weight to the nature and seriousness of the Appellant’s offending, independently of its subsequent assessment of the risk that the Appellant posed of repeating that offending (or similar behaviour). That approach is said to be inconsistent with a proper construction of para 8.1 of Direction No 110, which is protective, not punitive.

1(a)    Direction No 110 para 8.1

15    One of the primary considerations in Direction No 110 is protection of the Australian community from criminal or other serious conduct (in para 8.1).

    Paragraph 8.1(1) provides that decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

    Paragraph 8.1(2) provides that decision-makers should also give consideration to:

a) the nature and seriousness of the non-citizen's conduct to date; and

b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

    Paragraph 8.1.1 elaborates on the nature and seriousness of the conduct. Relevantly to this case, acts of family violence are viewed very seriously by the Australian Government and the Australian community, regardless of whether there is a conviction or a sentence imposed (see para 8.1.1(1)(a)(iii)).

    Paragraph 8.1.2 elaborates on the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. By para 8.1.2(2), in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the non-citizen reoffending; and

ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

…

1(b)    Tribunal’s reasons (protection of the community)

16    The Tribunal’s reasons on protection of the community and para 8.1 of Direction No 110 can be summarised as follows.

Findings on nature and seriousness of the Appellant’s conduct

17    The Tribunal considered the nature and seriousness of the Appellant’s conduct in ART [28]-[48]. The significant offending was the family violence committed in December 2018 (for which the Appellant was fined $2000 without conviction), and the offending in April 2021 (for which the Appellant was imprisoned).

18    The Appellant conceded in the Tribunal that the consideration in para 8.1.1(1)(a) (acts of family violence are viewed very seriously by the Government, regardless of whether there is a conviction or a sentence imposed) would “inevitably weigh against revocation”. The Tribunal agreed that this consideration weighed heavily against the Appellant (ART [39]).

19    In the case of the 2021 offending, the Tribunal rejected the Appellant’s argument that the total effective sentence fell toward the lower end of the full range of available sentences. The Tribunal referred to the findings by the sentencing judge that the offending was a serious example of aggravated burglary, that the offending was planned, that the scenario was terrifying for the occupants of the house, and the presence of the Appellant’s children was an aggravating feature. The sentencing judge determined that a lengthy or significant term of imprisonment was appropriate, despite a number of factors weighing in the Appellant’s favour. The Tribunal determined that this consideration weighed heavily against revocation of the cancellation decision (ART [40]-[42], referring to para 8.1.1(1)(c) of Direction No 110).

20    The impact of this offending on the victims and the costs to the community of investigating, prosecuting and punishing this offending weighed heavily against revocation (ART [43], referring to para 8.1.1(1)(d) and (f)). The Tribunal found that there was an increasing trend of seriousness in respect of the Appellant’s offending between 2018 and 2021, and this consideration weighed against revocation of the cancellation decision (ART [44]-[46], discussing para 8.1.1(1)(e)).

21    The Tribunal concluded that it was satisfied that “the nature and seriousness of the [Appellant’s] conduct weighs heavily against revocation of the cancellation decision” (ART [48]). This is the first impugned finding.

Findings on risk to the Australian community

22    The Tribunal considered the risk to the Australian community should the Appellant re-offend in ART [49]-[73].

23    The Tribunal stated that, in assessing risk, the decision-maker must have regard to, cumulatively, the nature of the harm and the likelihood of the non-citizen engaging in further criminal or serious conduct (ART [52]). The Tribunal stated that whether a risk is unacceptable will depend not only on the likelihood of it becoming reality but also on the seriousness of the consequences if it does (ART [53], quoting from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [111]).

24    In relation to the nature of the harm, the Appellant accepted in the Tribunal that there was little doubt that there would be potentially significant harm to the victim and her current partner, and the Appellant’s family, if the Appellant were to engage in further serious criminal or other conduct (see ART [55], citing the Appellant’s contentions in the Tribunal). The Tribunal found that this consideration weighed heavily against revocation (ART [55]). This is the second impugned finding.

25    In relation to the likelihood of re-offending, the Tribunal was referred to two psychological reports of Ms Cokorilo (ART [56]). The Tribunal discussed those reports and Ms Cokorilo’s oral evidence at ART [57]-[61]. The Tribunal summarised the courses and programs completed by the Appellant in custody (ART [62]), and discussed the Appellant ceasing to take his antidepressant medication in custody under guidance from his treating practitioner (ART [63]). The Tribunal discussed the support that the Appellant would receive from his family, friends and church at ART [65]-[67].

26    After setting out the parties’ arguments on risk of re-offending at ART [68]-[69], the Tribunal reached the following conclusions:

    Having regard to the evidence and given the increasing seriousness of the Appellant’s conduct, the Tribunal was satisfied that there remained a low risk that the Appellant would re-offend, but that given the seriousness of the conduct, any risk was unacceptable (ART [70]).

    The Tribunal noted the protective factors such as close family bonds, employment, and the Appellant’s involvement in his church, were factors that existed at the time of the Appellant’s offending in 2018 and 2021 (ART [71]).

    The Tribunal bore in mind that the safety of the Australian community was the highest priority of the Australian Government under para 8.1(1) of Direction No 110, and that acts of family violence are viewed very seriously by the Australian Government and the Australian community under para 8.1.1(1)(a)(iii). In relation to risk, para 8.1.2(1) provided that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable (ART [72]).

    The Tribunal then stated (ART [73]):

The Tribunal is of the view that there is a risk, albeit low risk, that the Applicant may reoffend, but that such risk is unacceptable. The Tribunal notes that paragraph 7(2) provides that protection of the Australian community is generally to be given greater weight than other primary considerations. As such, the Tribunal finds that the protection of the Australian community weighs heavily against revocation of the cancellation decision.

27    That conclusion is repeated in ART [126], where the Tribunal stated that the protection of the Australian community, “which encompasse[d] the seriousness and nature of the Appellant’s offending conduct and the risk of re-offending, the nature of the offending being family violence,” weighed heavily against revocation of the cancellation decision.

1(c)    Did the Tribunal misapply para 8.1?

28    The Appellant contends that the Tribunal misapplied para 8.1 of Direction No 110, because its reasons, particularly ART [48] and [55], impermissibly give adverse weight to the serious nature of the Appellant’s past offending, as a “freestanding source”.

29    The steps in the Appellant’s argument are as follows:

(1)    Paragraph 8.1 of Direction No 110 necessarily requires enquiry into both seriousness of harm and the risk or likelihood of that harm occurring, and only after risk has been assessed can its acceptability be judged, citing RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111 at [69] (Feutrill J).

(2)    Here, the Tribunal found in ART [48] and [55] that the nature and seriousness of the Appellant’s offending weighed against revocation, without having regard to any assessment of the risk that the offending might be repeated.

(3)    Those findings, divorced from any assessment of risk (and therefore any protective consideration), could only have been for the invalid purposes of retribution, denunciation or deterrence. (The Appellant is correct that the s 501CA power cannot be exercised for any of those latter purposes.)

(4)    The risk analysis in ART [70]-[73] did not cure the premature weighting of nature and seriousness of offending in ART [48] and [55], because the Tribunal did not revisit and reconcile the heavy adverse weight given to nature and seriousness of offending once the Tribunal accepted that the Appellant posed a low risk of re-offending.

Seriousness of future harm may be determined separately as an initial step

30    The first two steps in the Appellant’s argument are correct, but steps (3) and (4) do not follow. It can be accepted that para 8.1 requires some consideration of the risk of re-offending, and that any consideration of whether this risk is “unacceptable” requires consideration of both the seriousness of any future offending (as informed by the seriousness of past offending), and the likelihood of any future offending. But although those two matters must ultimately be weighed together, that does not mean that the seriousness of potential future offending cannot be determined separately from the likelihood of that offending occurring, as a first step in the analysis (what the primary judge called “interim views”: J [42]). The seriousness of potential future harm would usually be determined by considering the nature of the non-citizen’s past offending, taking into account matters such as the sentencing judge’s assessment of how serious that past offending was and the guidance in para 8.1.1(1). That matter is distinct from the likelihood that the non-citizen may engage in that or similar offending in the future. The seriousness and the likelihood of future harm each play a distinct but related role in determining whether the risk of re-offending is unacceptable.

31    That point is apparent from para 8.1.2(1) of Direction No 110, which provides that some conduct and the harm that would be caused “is so serious that any risk that it may be repeated may be unacceptable”. Inherent in that statement is that seriousness of any future harm (as determined by past offending) can be assessed separately from the likelihood of that harm occurring. And para 8.1.2(1) shows how the seriousness of the harm may itself weigh against revocation, in that even a small risk or likelihood of serious harm occurring may not be acceptable (whereas the same level of risk may be tolerated with a less serious harm). The findings in ART [48] and [55] can readily be understood in this sense. Although the seriousness of offending must then be weighed together with the likelihood of re-offending to determine whether the risk of re-offending is unacceptable, there is no need to “revisit” or “reconcile” an initial finding that the offending was serious. Nor is there any need to revisit or reconcile the weight given to the seriousness of offending, provided that the seriousness and likelihood of future offending are weighed together at some point.

Analysis of cases cited by the Appellant

32    The cases cited by the Appellant do not suggest any different result.

33    RNSQ held only that it was impermissible under previous Direction No 90 to reach an adverse conclusion on protection of the community without any assessment of the risk or likelihood of the particular non-citizen re-offending. The Tribunal in that case failed to assess the risk that RNSQ posed to the Australian community, because it concluded that, whatever the level of actual risk, any risk to the Australian community of RNSQ repeating his offending conduct was unacceptable: RNSQ at [63]. Feutrill J held that this approach was not open, and a decision-maker was required to “reach a view as to the extent to which the Australian community needs to be protected from the risk of harm the former visa-holder poses”. However, his Honour recognised that the risk to the Australian community may be unacceptable even if the risk is low or very low if the nature of the potential harm is sufficiently serious: RNSQ at [69]. Again, it is inherent in this latter statement that the nature and seriousness of harm can be assessed independently of the level of likelihood of that harm occurring, even though those matters are ultimately weighed together.

34    The Appellant also refers to CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28], in submitting that the nature and seriousness of harm and the likelihood of harm inform each other, and cannot be weighed in isolation and then summed. However, CRNL was considering a quite different problem: the Tribunal in that case had ascribed a weight to each individual consideration in the Ministerial Direction separately, and then stated the result without stating how the different and competing considerations weighed against each other: see CRNL at [37]-[38]. In other words, CRNL does not prevent a decision-maker from determining the weight of different considerations separately, but only requires that the decision-maker balance these different considerations against each other before reaching a final decision. Here, the Tribunal synthesised its discussion of the nature and seriousness of any future re-offending, and the likelihood of that occurring, in ART [70]-[73].

35    Another relevant case is BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14. The primary judge in that case held that errors by the Tribunal in assessing the nature and seriousness of BNY23’s offending were not material, because (relevantly) the Tribunal’s findings on the risk of re-offending provided an independent basis for the Tribunal’s decision: see BNY23 at [116], [126]. That conclusion was overturned by the Full Court on appeal: the Tribunal’s assessment of the nature of the harm of any future offending (as part of its risk assessment) required the Tribunal to take into account the nature and seriousness of BNY23’s past criminal offending. Therefore, the Tribunal’s findings on risk to the community did not provide an entirely separate or independent basis for the Tribunal’s conclusion that the protection of the community weighed heavily against revocation: BNY23 at [126]. BNY23 confirms that the nature and seriousness of offending is connected with the likelihood of re-offending, in assessing whether that risk is unacceptable. However, this reasoning does not suggest that each component (nature and seriousness of offending, and risk of re-offending) cannot be assessed independently and treated as either favouring or disfavouring revocation, even if the ultimate conclusion on protection of the community requires that these matters be weighed together.

Conclusion – Tribunal did not misapply para 8.1

36    For these reasons, there is no error in the Tribunal’s consideration of the protection of the community. It is permissible for the Tribunal to determine the seriousness of a non-citizen’s past offending, and consequently the seriousness of any future re-offending, as an initial step. Serious offending weighs against revocation, in the sense that even a low risk or likelihood of serious harm may not be acceptable. The impugned parts of the Tribunal’s reasons (particularly ART [48] and [55]) do no more than this. The Tribunal then synthesises the seriousness and likelihood of harm in ART [70]-[73], before reaching a final conclusion on the protection of the community consideration.

Appeal ground 2: Whether Tribunal failed to consider impact on the Appellant and his family in considering ties to Australia

37    Appeal ground 2 contends, in substance, that the Tribunal misapplied para 8.3 of Direction No 110 in two ways:

    First, by failing to take into account or assess the impacts of the Appellant’s removal on his immediate family members (contrary to para 8.3(1)); and

    Second, by failing to consider or assess the impact of removal on the Appellant, and failing to take into account the extent of time that the Appellant had spent contributing positively to the community (contrary to para 8.3(2)).

2(a)    Direction No 110 para 8.3

38    Another of the primary considerations in Direction No 110 is the strength, nature and duration of a non-citizen’s ties to Australia (in para 8.3).

    By para 8.3(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.

    By para 8.3(2), the decision-maker 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) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

2(b)    Tribunal’s reasons (ties to Australia)

39    The Tribunal considered the Appellant’s ties to Australia and para 8.3 of Direction No 110 in ART [83]-[89]. The Tribunal summarised the evidence on this consideration as follows:

    The Appellant arrived in Australia as a 17-year-old, and has been resident in Australia for 26 years (ART [84]).

    The Appellants’ four children were born in Australia, and range in age between 13 and 23 years. The Appellant stated that he maintains frequent contact with his children through calls and text messages, and sees his children and grandchild on a regular basis (ART [85]). The Appellant said that each of his four children and his grandchild will eventually live with him on his release. Two of the Appellant’s daughters gave evidence that they wanted to live with their father, and that they have made plans about activities they might engage in together (ART [86]).

    The Appellant also has a large extended family which includes his parents, siblings, nieces, nephews and cousins. It was plain from reading the many letters of support tendered by the Appellant, and listening to the oral evidence of his children and family members that the Appellant has strong ties to Australia through his family. It was also clear that the Appellant had strong ties through his solid employment record of 15 years with the one company, and strong ties as an active member of his local church (ART [87]).

40    The Tribunal stated that the Minister accepted that this consideration weighed in favour of revocation, while the Appellant submitted that this consideration should weigh heavily, if not determinatively, in favour of revocation (ART [88]). The Tribunal was satisfied that the Appellant “has strong ties to Australia through his children, grandchild, family members and friends, his employment and church”. The Tribunal noted that the Appellant was resident in Australia for five years before his first offending incident in 2003 (for which he was fined $700 and his driving licence was cancelled for two years), and that the offending which led to the Appellant’s visa being cancelled took place 22 years after his arrival in Australia. The Tribunal accepted that, on balance, this consideration weighed in favour of revocation, and the Tribunal took it into account (ART [89]).

41    Two other parts of the Tribunal’s reasons are also relevant.

(a)    In discussing the Appellant’s risk of re-offending, the Tribunal referred to the letters of support provided by the Appellant’s immediate family, family friends and his Pastor, and the oral evidence from the Appellant’s children, adult siblings and sister-in-law (ART [65]-[66]). The Tribunal stated that the witnesses were unanimous in their love and support for the Appellant, and said they were able to assist him if he ever required help. The Tribunal referred to the Appellant’s plan to live with his parents if released and provide support to his elderly father, who has a range of serious health issues. The Tribunal stated that the Appellant’s father needs assistance to attend medical appointments, and his father and sister do not drive. That places strain on other family members, and the father arranging his own transport to appointments places a financial burden on him (ART [67]).

(b)    In discussing the best interests of minor children, the Tribunal considered the position of the Appellant’s daughter (then 13 years old) at ART [94]-[101], and his minor grandchild (then 3 years old) at ART [102]-[107]. The Tribunal noted that the Appellant has a large, extended family including nieces and nephews who miss him and his presence in their lives (ART [108]). The Tribunal found that ultimately the best interests of the Appellant’s minor child, his minor grandchild, and minor children in the Appellant’s extended family weighed in favour of revocation (ART [109]).

2(c)    Obligation to consider representations – general principles

42    As explained below, the Appellant’s real complaint is not that matters were overlooked altogether, but that there was no proper, genuine or realistic consideration of the Appellant’s representations on those matters. In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582, a plurality of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) explained the content of the obligation to consider representations under s 501CA(4) as follows:

(a)    A decision-maker must “read, identify, understand and evaluate” the representations. The decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by the person: Plaintiff M1 at [24].

(b)    The requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness, and will vary, among other things, according to the length, clarity and degree of relevance of the representations: Plaintiff M1 at [25].

(c)    Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach: Plaintiff M1 at [26].

(d)    However, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error: Plaintiff M1 at [27].

43    In ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [8], the Full Court stated that, following Plaintiff M1, approaching the matter “on the basis that the Court enquires into the degree or quality of consideration in the reasoning” is likely to lead to error in the form of the Court usurping the function of the Minister. To similar effect, the Full Court in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160; (2024) 306 FCR 372 at [45] stated that the test of “proper, genuine and realistic consideration” does not state the correct approach. At the same time, the Minister accepted in BQQ25 v Minister for Immigration and Citizenship [2025] FCA 1279 at [26] that a person affected by a decision should not be “left to guess” what role, if any, a matter has played in the exercise of discretion: see Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [49] (the Court); see also Puru v Minister for Immigration and Citizenship [2026] FCA 937 at [70] (Abraham J).

2(d)    Did the Tribunal fail to consider the Appellant’s representations on ties to Australia?

44    The Appellant contends that the Tribunal failed to consider the impacts of the Appellant’s removal on his immediate family, and on the Appellant himself.

    The Appellant contends that para 8.3 requires that a decision-maker consider the impacts of removal, and this task is not discharged by recording that a person has ties to Australia, and that they are strong. Similarly, it is said, the Tribunal recorded the Appellant’s ties to Australia, but did not make any finding about the impact of removal on him.

    The Appellant contends that impact of removal on the Appellant’s family was a “cornerstone” of the Appellant’s case in the Tribunal, and there was detailed written and oral evidence about these impacts. It is said the engagement required by the Tribunal was correspondingly significant, and required “genuine consideration” of the impact on them. The Tribunal’s reasons did not mention the twenty statements in support, and said nothing of their detailed account of what removal would do to the Appellant’s children, his grandchild and his ailing parents.

    The Appellant contends that the Tribunal did not make any finding about whether, or for how long, the Appellant had contributed positively to the community. That finding is said to be required by para 8.3(2)(a)(ii) of Direction No 110.

45    These arguments must be rejected.

Impacts of removal and ties to Australia are inter-related

46    The Appellant’s first argument concerns the difference between assessing impacts and recording ties to Australia, and also concerns the different perspectives from which the impacts of removal are to be assessed.

47    The wording of para 8.3(1) and (2) of Direction No 110 indicates that ties to Australia and impacts of removal are inter-related.

    Paragraph 8.3(1) in its terms requires a decision-maker to consider the “impacts” of removal on immediate family members in Australia (who are citizens, permanent residents or who have a right to remain indefinitely), while para 8.3(2) in its terms requires a decision-maker to consider the strength of a non-citizen’s “other ties” to Australia.

    The Appellant contends that para 8.3(2) requires a decision-maker to consider the impact on the non-citizen of losing those ties to Australia, relying on Siale v Minister for Immigration and Citizenship [2025] FCA 608 at [61] (SC Derrington J).

48    The Appellant’s own argument shows how a non-citizen’s ties to the community, and the impacts of removal, are often counterparts: the impact of removal is the loss of the non-citizen’s ties to the Australian community. Accordingly, by recording a non-citizen’s immediate family in Australia, the Tribunal is determining and recognising the people who will lose their connection to the non-citizen if he or she is removed, which is the relevant impact of removal. And by recording a non-citizen’s ties to Australia, the Tribunal is determining what will be lost to the non-citizen by his or her removal. For that reason, recording a non-citizen’s ties to Australia is not divorced from assessing the impacts of removal, because these matters are inter-related. Further, in many cases, the impacts of losing connection to an immediate family member will be obvious, and do not need to be spelt out in any great detail (whether it be the impact on the family member, or on the non-citizen).

49    The difference between para 8.3(1) and (2) is not so much the difference between “ties” and “impacts”, but the perspective from which the effects of removal are to be assessed. Paragraph 8.3(1) in its terms is concerned with the impacts of removal on the non-citizen’s immediate family members, whereas para 8.3(2) is concerned with the impacts of removal on others, including the non-citizen: see Siale at [61]; Brown v Minister for Immigration and Citizenship [2026] FCA 323 at [55] (Moore J). Accordingly, Siale and Brown indicate that any failure to consider the impacts of removal from the perspective of the non-citizen under para 8.3(2) may amount to jurisdictional error, subject to questions of materiality. At the same time, although para 8.3(1) and (2) address distinct matters, it does not follow that a decision-maker is required rigidly to consider those paragraphs separately in its reasons, as long as the reasons indicate that the decision-maker considered and understood the relevant matters in paras 8.3(1) and (2): Brown at [56].

50    That last point raises a question about the level of detail required in a decision to establish that impacts of removal have been considered. That matter is considered next. Significantly, neither Siale nor Brown suggest that the impacts of removal must be assessed at any particular level of detail: rather, the usual principles for determining whether a matter has been considered apply.

    In Brown, the problem was that the Tribunal did not apprehend the differences between paras 8.3(1) and (2). Passages in the Tribunal’s reasons in that case suggested that it believed that para 8.3(2) was either a discretionary consideration or an elaboration of the consideration in para 8.3(1): Brown at [64]-[65].

    The problem in Siale was that the Tribunal’s reasons were found not to address the impact of removal on the applicant’s minor siblings (as required by para 8.3(1)), and did not consider the impact of separation from the relevant minor children from the applicant’s perspective (as required by para 8.3(2)): Siale at [60]-[62].

51    Consistently with that analysis, two later cases discussing Siale indicate that the necessary consideration may be implicit in a Tribunal’s reasons, rather than explicit.

52    First, in Sumeo v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 563 at [76], Shariff J accepted that para 8.3(2) required consideration of the applicant’s ties to the community from his perspective, adopting the analysis in Siale and Brown. The Tribunal in that case considered the applicant’s ties to the Australian community from his perspective, but did not specifically consider the applicant’s reliance on his wife, Ms RS, for support in relation to his literacy difficulties in this part of the reasons. However, it was implicit in the Tribunal’s unqualified acceptance that the applicant had strong connections to the Australian community through his family and Ms RS that the applicant was reliant on Ms RS and his family as important relationships. Further, the Tribunal did not ignore the applicant’s literacy difficulties, but specifically considered those matters as part of the impediments that the applicant would confront if removed to New Zealand: Sumeo at [80]-[81]. Shariff J held that, when the reasons were read fairly and as a whole, the Tribunal considered the applicant’s ties to the Australian community from his perspective at a level of generality that necessarily included his reliance on his immediate and extended family for support: Sumeo at [83].

53    Second, in KC v Minister for Immigration and Multicultural Affairs [2026] FCA 514, the applicant contended (relying on Siale at [61]) that the Tribunal only considered the impact of removal on his wife and daughter, without assessing what those relationships meant to the applicant personally, and failed to perform the necessary evaluative task: KC at [41]-[43]. Rofe J questioned whether Siale did require a consideration of the impact on the applicant of his removal from his family: KC at [53]-[54]. (We do not need to determine whether that characterisation of Siale is correct.) Relevantly to this appeal, Rofe J held further that the Tribunal’s reasoning, read in context, showed that the applicant’s family relationships were fully recognised and formed part of the evaluative task, stating (KC at [55]):

[T]he Tribunal was conscious of the applicant’s family circumstances and the hardship to the applicant that removal would entail … [T]he alleged error [was] that the Tribunal acknowledged the consequences of separation and the likely impact on the applicant but did not expressly quantify this as a factor which tied him to Australia. [However] it is not necessary for a decision record to explicitly recite “consideration” terminology to demonstrate that a primary consideration has been addressed. (emphasis added)

The emphasised sentence in the passage above is supported by the general principles on what amounts to lawful “consideration” of a matter, considered next.

Test is not one of “genuine consideration”

54    The Appellant’s second argument is that the Tribunal’s relatively spare reasoning in ART [83]-[89] does not amount to “genuine consideration” of impacts of removal. However, this argument poses the wrong test.

55    The test for whether a matter has been “considered” in accordance with law is set out in Plaintiff M1, summarised in [42] above. As noted, the High Court cautioned specifically against labels such as “active intellectual process” or “proper, genuine and realistic consideration” (Plaintiff M1 at [26]), and the Full Court in ECE21 at [8] cautioned against enquiring into the “degree or quality of consideration in the reasoning”.

56    It is true that Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431 at [55](1) contains a reference to active intellectual process, and the Full Court in Jabari at [55] noted that ECE21 concerned a decision of the Minister, not the Tribunal. However, the fact that a decision is made by a Tribunal not the Minister would not be a reason to apply tests of active intellectual process or the like: Plaintiff M1 concerned a decision of a delegate (who is also bound by a Ministerial direction), and the High Court’s reasoning in Plaintiff M1 at [23]-[27] applied well-established authority from different statutory contexts to the broad discretionary power in s 501CA. The doubts in Plaintiff M1 at [26] about using the tests of “proper, genuine and realistic consideration” or “active intellectual process” reflect the underlying limits on judicial review, and are therefore of general application. The real point to emerge from Jabari is that delegates and the Tribunal are not just required to consider representations made by a non-citizen, but must also comply with any applicable Ministerial direction, and any failure to apply a Ministerial direction will itself amount to jurisdictional error: see FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (O’Callaghan and Colvin JJ) (cited in Jabari at [55]); FCSV v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 963 at [55] (Jackson J).

57    The correct question is whether the Tribunal has read, identified, understood and evaluated the Appellant’s representations on ties to Australia: Plaintiff M1 at [24]; Nguyen at [45] (in relation to para 8.4 of former Direction No 99). For the following reasons, the Tribunal has undertaken that task.

58    The Tribunal in this case expressly identified the many letters of support provided by the Appellant (ART [65], [87]). The Tribunal identified the Appellant’s different family members who would be affected by removal (ART [85]-[87]), and dealt elsewhere with his relationship with his minor child and his minor grandchild in some detail (ART [94]-[101], [102]-[107]). The Tribunal acknowledged elsewhere that the Appellant’s father has a range of serious health issues, and that the Appellant would be able to assist his father in attending medical appointments (which otherwise would be difficult for the family) (ART [67]). The Tribunal acknowledged that the Appellant was an active member of his local church (and had responsibilities as “High Chief” in the Samoan community) (ART [87], read with [65]), and acknowledged the Appellant’s solid employment record of 15 years with the one company (ART [87]).

59    These matters identified by the Tribunal form the basis of the finding in ART [89] that the Appellant has “strong ties to Australia through his children, grandchild, family members and friends, his employment and church”. Although this finding is general in nature, it sufficiently covers the representations made by the Appellant.

60    There are two particular matters where the detail of the representation is referred to elsewhere in the Tribunal’s reasons.

    The Tribunal considered in some detail the position of the Appellant’s grandchild and the impact on the child of being separated from the Appellant at ART [102]-[106].

    The Tribunal in its assessment of risk of re-offending set out in more detail the Appellant’s role in his church (in particular his role as “High Chief”) at ART [65], and referred to the Appellant’s father’s health needs and the difficulties faced by him in attending medical appointments if the Appellant is not available, and the consequent strain that placed on other members of the family, at ART [67].

61    The Appellant accepts, as he must, that it is necessary to read the Tribunal’s reasons as a whole, and that the sequential structure of reasons, so that each topic is dealt with under a separate heading, is not generally a sufficient reason to infer that in dealing with one matter the decision-maker has forgotten the substance of the preceding parts of the reasons or is unaware of the substance of the subsequent parts of the reasons: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 280 CLR 265 at [50] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ). Even so, the Appellant submits, the other parts of the Tribunal’s reasons do not advance its consideration of ties to Australia.

62    First, the Appellant submits, correctly, that the discussion in ART [102]-[106] only considered the impact of removal from the perspective of the grandchild and that child’s mother (the Appellant’s daughter Ms F). However, it is those impacts that extend beyond the obvious impact of losing a tie to a loved one, which may not require detailed analysis. The discussion of the impacts on the Appellant’s grandchild and his daughter under para 8.4 therefore assists in confirming that the Tribunal appreciated those impacts of removal. The impact on the Appellant of him being removed from his grandchild is sufficiently implicit in the Tribunal’s discussion of his family ties in Australia, and the recognition in ART [86] that his daughter Ms F and his grandchild had planned to live with the Appellant on his release. Second, the Appellant submits, again correctly, that the Tribunal in ART [65]-[67] is not considering the impact of the Appellant’s removal on his father, or consequent impacts on his family. Even so, the fact that the Tribunal identifies at some point the health issues of the Appellant’s father, the Appellant’s responsibilities in this regard, and the difficulties for other family members to perform that role, allows the Court to be satisfied that these matters were considered as part of the more general finding in ART [89]: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47] (the Court); Jabari at [55](4)-(5). This is not a case where it would involve speculation as to whether representations were considered: cf Puru at [70].

63    The Appellant then contends that the representations made by the Appellant’s daughter Ms M (who was 18 by the time of the Tribunal’s decision) also required specific consideration.

    Ms M made representations in the Tribunal about the adverse impacts that the imprisonment of the Appellant had had on her, including being hospitalised in 2021 for an overdose of anti-depressants. She stated that she saw a therapist for a while which helped, and that she went to an alternative school in 2022. She stated that she did not see a therapist anymore as she is doing a lot better. She stated that talking to the Appellant was always so reassuring for her, and she did not know how she would cope with a further and more permanent separation from him.

    The position of the Appellant’s daughter Ms M is of course an important matter to be considered under para 8.3, as with other immediate members of the Appellant’s family. But that does not mean that the Court should infer that Ms M’s representations were not considered, in the absence of the Tribunal referring to them specifically. The Tribunal refers in ART [86] specifically to other parts of Ms M’s representations; namely, that she plans to live with the Appellant if he is released, and plans to play music with him. The Court can properly infer that the Tribunal turned its mind to the individual position of Ms M in considering the Appellant’s ties to Australia.

64    More generally, the Appellant observes that the requisite level of engagement “will vary, among other things, according to the length, clarity and degree of relevance of the representations” (Plaintiff M1 at [25]), and contends that the volume of material provided by him, and the importance of this issue to the Appellant’s case, means that more detail was required in the Tribunal’s reasons. However, Plaintiff M1 at [25] is not suggesting that the level of engagement must necessarily be commensurate with the length of representations made, but rather was making the point that a decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them. The High Court states that a decision-maker is not obliged to make actual findings of fact as an adjudication of all material claims made by a former visa holder: Plaintiff M1 at [24].

65    “Relevance” in the context of Tribunal proceedings is not just a matter of the importance of an issue to a non-citizen’s case, but also the extent to which an issue is in dispute between the non-citizen and the Minister, requiring resolution by the Tribunal. If the Minister accepts that a matter is one that weighs in favour of revocation, and does not dispute the factual basis of the non-citizen’s arguments on that issue, it may be that the Tribunal can deal with the matter relatively briefly: see, for example, Ash v Minister for Immigration and Citizenship [2025] FCAFC 174 at [34]-[35] (the Court). The difference in weight between a finding that the ties to Australia consideration “weighs in favour” of revocation (as opposed to heavily in favour) is not so pronounced as to require greater consideration of those ties and the impacts of removal: see Ash at [33].

    The real debate in the Tribunal went to the relative weight to be given to the Appellant’s ties to Australia: the Appellant submitted in the Tribunal that this consideration “should weigh heavily, if not determinatively, in favour of revocation”, while the Respondent submitted that the consideration (although it favoured non-revocation) “should not outweigh the considerations that favour non-revocation”.

    A key matter in the Appellant’s submission on the relative weight to be given to this consideration was his submission that he posed an “acceptable” risk to the Australian community. As noted, the Tribunal did not accept that submission, and found that the risk was unacceptable and the protection of the community weighed heavily against revocation (ART [73]). In other words, the Tribunal’s disagreement with the Appellant on the relative weight to be given to his ties to Australia turned more on the weight the Tribunal gave to other considerations, than it did on the extent of weight to be given to the ties to Australia consideration by itself: see Ash at [32].

No requirement to make express finding on period of positive contribution

66    The Appellant’s third argument is that the Tribunal did not make any finding about whether, or for how long, the Appellant had contributed positively to the community. That finding is said to be required by para 8.3(2)(a)(ii) of Direction No 110.

67    This argument misunderstands para 8.3(2)(a) of Direction No 110. That paragraph requires decision-makers to “have regard to … how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child”. The Tribunal here did that, by finding that the Appellant had arrived in Australia as a 17-year-old, and had been in Australia for 26 years (ART [84]).

68    It is true that para 8.3(2)(a) “not[es] that” (i) less weight should be given where the non-citizen began offending soon after arriving in Australia, and (ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community. However, that note does not impose any obligation on decision-makers to make a separate finding or findings about the period of positive contribution. Rather, the period of positive contribution is a matter that must be given consideration when forming a view about the primary consideration of the “strength, nature and duration of any other ties that the non-citizen has to the Australian community” in para 8.3(2). That position follows from the Full Court’s analysis in Nguyen of para 8.4(4) of former Direction No 99 (which corresponds to para 8.4 of Direction No 110).

    Paragraph 8.4(4) of former Direction No 99 set out a list of factors that must be considered where relevant, including the likely effect that any separation from the non-citizen would have on the child (para 8.4(4)(d)): see Nguyen at [9]. The appellant in Nguyen contended that the Tribunal had misapplied para 8.4, because it had not made any findings about the effect the separation of the appellant would have on his nephews, and it did not evaluate and analyse those findings in a way that would amount to their genuine consideration: Nguyen at [15].

    The Full Court held that the factors listed in para 8.4(4) are not matters that must be taken into account in making a final decision. Instead, there must be consideration of those factors when forming a view about the primary consideration in para 8.4: Nguyen at [41]; see also [33]. That is, the primary consideration to which there must be regard is the best interests of minor children in Australia, not each of the factors listed in para 8.4(4): Nguyen at [40].

69    Here, the Tribunal made the following references to the periods of positive contribution made to the community by the Appellant in the course of the Tribunal’s findings on his ties to Australia. The Tribunal referred to the strong ties that the Appellant has with his extended family in Australia, and referred to the Appellant’s solid employment record, and his strong ties as an active member of his church (ART [87]). The Tribunal also took note of how long the Appellant had been in Australia by the time of his offending (ART [89]; see para 8.3(2)(a)(i)). Nothing more was required.

Conclusion – Tribunal did not misapply para 8.3

70    For these reasons, the Tribunal did not err in its consideration of ties to Australia under para 8.3 of Direction No 110. The Tribunal read, identified, understood and evaluated the Appellant’s representations on ties to Australia. The relative brevity of its reasons can be explained by the fact that these matters were not in dispute between the Appellant and the Minister before the Tribunal. There was no requirement for the Tribunal to make positive findings as to the period(s) that the Appellant had made a positive contribution to the Australian community.

conclusion

71    For these reasons, the appeal should be dismissed. There is no reason to depart from the usual position as to costs.

Associate:

Dated:    5 August 2026