Federal Court of Australia

Abraham v Minister for Immigration and Citizenship [2026] FCAFC 115

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    The appellant appeals from the orders made by and the judgment of the primary judge in Abraham v Minister for Immigration and Citizenship [2026] FCA 100 (Primary Judgment or PJ). The primary judge dismissed an application for judicial review of a decision of the Administrative Review Tribunal (Tribunal) dated 5 June 2025 (Tribunal’s Decision or TD) in which the Tribunal affirmed a decision of the delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the appellant’s Class BS Subclass 801 Spouse Visa under s 501CA of the Migration Act 1958 (Cth) (Act).

2    By his Amended Notice of Appeal filed 12 May 2026, the appellant advances a single ground of appeal to the effect that the primary judge erred in failing to find that the Tribunal had misconstrued paragraph 8.5(2) 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) and substituted its own views of the expectations of the Australian community by applying an expectation stated in that paragraph which was not applicable to the appellant’s offending.

3    For the reasons that follow, the appeal should be dismissed and the appellant pay the Minister’s costs as agreed or assessed.

BACKGROUND

4    The appellant is a citizen of Lebanon who arrived in Australia in 1999 and was subsequently granted a Class BS Subclass 801 Spouse Visa.

5    In January 2019, the appellant was convicted in the NSW District Court of three offences: dishonestly damaging by fire for financial gain in contravention of s 197(1)(b) of the Crimes Act 1900 (NSW); supplying a prohibited drug being a deemed supply of 340 grams of synthetic cannabis in contravention of s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW); and receiving or disposing of stolen property worth less than $15,000 in contravention of s 189 of the Crimes Act 1900 (NSW). The appellant was sentenced to an aggregate term of nine years’ imprisonment with a non-parole period of six years.

6    On 2 May 2023, the appellant’s visa was mandatorily cancelled under s 501(3A) of the Act (Cancellation Decision) on the basis that he failed to pass the character test by operation of ss 501(6)(a) and 501(7)(c). On 30 May 2023, the appellant made representations seeking revocation of the Cancellation Decision. On 21 March 2025, a delegate of the Minister made a decision to not revoke the Cancellation Decision (Non-Revocation Decision).

7    On 25 March 2025, the appellant lodged an application for merits review with the Tribunal, seeking review of the Non-Revocation Decision. On 5 June 2025, the Tribunal affirmed the Non-Revocation Decision.

THE PARTIES’ CONTENTIONS

8    The appellant’s contentions on the appeal (as in the proceedings below) focused upon the application of paragraph 8.5 of Direction 110.

9    Paragraph 8.5 of Direction 110 provides:

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(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:

a.    acts of family violence; or

b.    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

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;

d.    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

e.    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

f.    worker exploitation.

(3)    The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(4)    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

10    Relying upon Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; 99 ALJR 1378 at [26] (Gageler CJ, Edelman and Jagot JJ), the appellant contended that there are three distinct expectations embodied in paragraphs 8.5(1) and 8.5(2) of Direction 110:

(a)    first, in paragraph 8.5(1), that “[t]he Australian community expects non-citizens to obey Australian laws while in Australia” and “[w]here a non-citizen has engaged in serious conduct in breach of this expectation … the Australian community, as a norm, expects Government to not allow such a non-citizen to enter or remain in Australia”;

(b)    second, in the first sentence of paragraph 8.5(2), a general expectation that “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”; and

(c)    third, a specific expectation, which “operates separately and solely by reference to the specified conduct” in sub-categories (a)-(f) (Plaintiff S22 at [26]), namely that 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”.

11    The appellant submitted the Tribunal had misconstrued paragraph 8.5(2) of Direction 110 by reasoning that the “specified conduct” to which the second sentence of that paragraph applied was “suggestive” and “not determinative”. To make sense of the appellant’s submissions in this regard, it is necessary to refer to the Tribunal’s reasons.

12    The Tribunal considered the expectations of the Australian community at TD [89]-[97], as follows:

Expectation of the Australian Community

89.     Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

90.     Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

91.     Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

92.     Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs, which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.

93.     Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

94.     In Ismail the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):

… para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.

Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community...

95.     In his revocation request the Applicant states that none of his crimes fall within the categories identified in Direction 99 as giving rise to the expectation that the visa would be cancelled. However, the Tribunal considers the examples of the crimes set out in the Direction to be suggestive, rather than determinative so that if the Applicant has committed offending that is not described in the Direction, it does not mean that the stated community expectations should not apply.

96.     The Applicant submits that it is necessary to take into account his previous good character and absence of further offending. The Applicant submits that the weight attributed to this consideration should be moderated on account of his lengthy residence in Australia. In his submission to the Tribunal the Applicant concedes that the consideration weighs in favour of the revocation but submits that it should be given moderate weight, given his past contribution to the Australian economy through employment.

97.     Given the nature of the offending and the potential harm it could have caused, the Tribunal has formed the view that this consideration weighs heavily against the revocation and that it should be given significant weight against revocation.

(Emphasis added; footnotes omitted.)

13    The appellant’s contentions focused upon the Tribunal’s reasoning at TD [95]. The appellant submitted that the Tribunal’s statement that the “examples of the crimes” could only be a reference to those specified in paragraph 8.5(2)(a) to (f) of Direction 110, and that the Tribunal was wrong to conclude that these examples were “suggestive” and not “determinative”. The appellant submitted that the directive given to decision-makers in the second sentence of paragraph 8.5(2) as to the Australian community’s expectations was to be distinguished from the expectations identified in paragraph 8.5(1) and in the first sentence of paragraph 8.5(2). It was said that the matters specified in the second sentence of paragraph 8.5(2) were exhaustive and determinative as to the Australian community’s expectations such that the Tribunal had erred by substituting its own views as to those expectations when that is not what paragraphs 8.5(1) and 8.5(2) required. The appellant contended that, when the Tribunal referred to the “stated community expectations” in TD [95], it was referring (only or inclusively) to the expectation stated in the second sentence of paragraph 8.5(2) of Direction 110.

14    In support of his contentions, the appellant relied upon the reasons of the High Court in Plaintiff S22. There, the Court set out at [23] that the relevant delegate had reasoned as follows in relation to the expectations of the Australian community as required by paragraphs 8.5(1) and 8.5(2) of Direction 110:

101.     The Direction indicates that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

102.     In addition, the Direction also indicates that 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 continue to hold a visa. In particular, the Direction states that the Australian community expects that the Australian Government can and should cancel a visa if the visa holder raises serious character concerns through certain kinds of conduct.

103.     In this regard, I have also noted the Direction states that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

104.     I have proceeded on the basis that the Australian community’s general expectations about non-citizens, as articulated in the Direction, apply in this case. I have attributed this consideration significant weight against revocation of the cancellation of [the plaintiff’s] visa.

15    The plaintiff before the High Court contended that the delegate had misapplied paragraph 8.5(2) of Direction 110 in that none of the relevant offending was of the kind specified in 8.5(2)(a) to (f), that there was no logical basis to apply those considerations to the case at hand, and that the delegate’s reasons were for other reasons internally inconsistent: at [24]. In rejecting the plaintiff’s contentions, the High Court reasoned as follows at [25]-[26]:

[25]     Neither contention of the plaintiff withstands scrutiny. Paragraphs 101 to 103 of the delegate’s reasons reflect the terms of para 8.5(1), (2) and (3) of Ministerial Direction 110. Paragraph 104 of the delegate’s reasons applies para 8.5(4) of Ministerial Direction 110, which required the decision-maker to “proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case”. In referring, in para 104, to the “Australian community’s general expectations”, it is not to be assumed or inferred that the delegate wrongly believed the plaintiff’s conduct fell within the list specified in para 8.5(2) of Ministerial Direction 110, thereby triggering the application of the “particular” expectation in the second sentence of that paragraph. To the contrary, the fact that the delegate does not identify any such specific conduct of the plaintiff and instead refers at a high level of generality to para 8.5(2) as concerning “certain kinds of conduct” conveys that the delegate understood both that the plaintiff had not engaged in any kind of the specified conduct and that the plaintiff was therefore not subject to the particular expectation in the second sentence of that paragraph.

[26]     This reading of the delegate’s reasons is reinforced by the fact that in para 104 the delegate refers only to the “Australian community’s general expectations”. Those “general” expectations are to be understood as a reference to the “norm” identified in para 8.5(1) (that “[t]he Australian community expects non-citizens to obey Australian laws while in Australia” and “[w]here a non-citizen has engaged in serious conduct in breach of this expectation … the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia”) and the statement in the first sentence of para 8.5(2) (that “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”). The provision in the second sentence of para 8.5(2) beginning with the words “[i]n particular”, as a matter of ordinary English text, operates separately and solely by reference to the specified conduct. Having already characterised the plaintiff’s custodial sentence for his offending as reflecting the view of the sentencing court that the offending was “very serious”, the delegate was entitled to give the expectations of the Australian community significant weight in deciding against the revocation of the mandatory cancellation of the plaintiff’s visa even though the plaintiff’s conduct was not of the kind specified in para 8.5(2).

(Emphasis added.)

16    The appellant contended that in finding that the second sentence of paragraph 8.5(2) of Direction 110 was “suggestive” and not determinative, the Tribunal had failed to have regard to the fact that this second sentence operated “solely by reference to the specified conduct”. The appellant submitted that the primary judge erred in not so finding. The primary judge’s relevant reasons on this issue are located at PJ [55]-[63]. In short, the primary judge reasoned that, read fairly, the Tribunal’s reasons at TD [89]-[97] disclosed that the Tribunal had applied the expectations set out in paragraph 8.5(1) of Direction 110 and not under paragraph 8.5(2). Her Honour reasoned to that conclusion as follows at PJ [55]-[63]:

55.    It was rightly not in issue that paragraph 8.5(2) of Direction 110 and its predecessor, paragraph 8.4(2) of Direction 99, set out a particular community expectation that operates only by reference to the especially egregious types of cases listed in subparagraphs (a) to (f) inclusive: see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68; (2023) 297 FCR 662 at [35] (Moshinsky, Stewart and Jackman JJ) and Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 at [26] (Gageler CJ, Edelman and Jagot JJ). As such, it was not in issue that if the error alleged by the applicant were established, the applicant would have established jurisdictional error subject to any issue as to materiality.

56    However, fairly read in context, the Tribunal did not fall into the error alleged by the applicant in reasoning as it did at [95].

57    The Tribunal’s consideration of the “Expectation of the Australian Community” commences with the overall policy underlying paragraph 8.5 of Direction 110, that “[t]he Australian community expects non-citizens to obey Australian laws while in Australia” (at [89]). The Tribunal then quotes paragraph 8.5(1) of Direction 110, explaining correctly that it “sets out the government’s view in relation to community expectations” (at [89]). Furthermore and importantly, the Tribunal at [91] quotes paragraph 8.5(4) of Direction 110, explaining that it provides guidance on how the expectations of the Australian committee are to be determined, and importantly observed at [92] that:

Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs, which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the direction.

58    In so stating, the Tribunal adopted a correct understanding of paragraph 8.5 as a whole, namely, that it was not for the Tribunal to assess community expectations for itself.

59    Consistently with this, the Tribunal at [93] explained that “[p]aragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision-maker must have regard to”, citing the decision of the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [51]-[52] (emphasis added).

60    It is in this context that the Tribunal’s reasons at [95] fall to be construed. At [95], the Tribunal stated that:

In his revocation request the Applicant states that none of his crimes fall within the categories identified in Direction 99 as giving rise to the expectation that the visa would be cancelled. However, the Tribunal considers the examples of the crimes set out in the Direction to be suggestive, rather than determinative so that if the Applicant has committed offending that is not described in the Direction, it does not mean that the stated community expectations should not apply.

(Emphasis added.)

61    It is apparent that at [95], the Tribunal is dealing with a specific submission by the applicant that his offences do not fall within any of the categories in paragraph 8.5(2) and therefore do not give rise to an expectation that his visa “would” be cancelled. While not as well expressed as it could be, I agree with the Minister that in describing the examples set out at paragraph 8.5(2) as “suggestive”, the Tribunal is effectively saying that the fact that the applicant did not commit any of the offences in paragraph 8.5(2) does not mean that the community expectations in paragraph 8.5(1) do not apply. In other words, the Tribunal rightly considered that the applicant’s submission was not an answer to the question of whether the general community expectations in paragraph 8.5(1) applied. While ultimately the reasons of the Tribunal must be construed in each case, I note that the same conclusion was reached by Collier J in LRMM v Minister for Immigration and Multicultural Affairs [2025] FCA 51 which raised similar issues.

62    This understanding of the Tribunal’s reasoning is not only supported by the correct statements in the preceding paragraphs about the effect of paragraph 8.5 of Direction 110 by the Tribunal. It is also supported by the way in which the Tribunal then goes on to determine the weight to be given to the expectations of the Australian community. After considering the applicant’s submissions which conceded that the expectations of the Australian community weigh in favour of revocation but this consideration should be given “moderate weight” only, the Tribunal concluded at [97] that:

Given the nature of the offending and the potential harm it caused, the Tribunal has formed the view that this consideration weighs heavily against the revocation and that it should be given significant weight against revocation.

63    In other words, the Tribunal does not purport to apply the stronger expectation in paragraph 8.5(2) that the Australian community “would expect” relevantly that the applicant’s visa should be cancelled but engages in a consideration of the nature of the offending and potential harm it has caused in assessing the weight to be given to the expectations of the Australian community in accordance with paragraph 8.5(1). It follows that ground 3 must be dismissed.

(Emphasis added.)

17    The appellant submitted that the primary judge erred in finding that the Tribunal was applying the expectations as stipulated in paragraph 8.5(1) as that did not accord with the Tribunal’s express reasons and because it would make no sense for the Tribunal to have referred to the fact that none of the appellant’s “…crimes fell within the categories identified in Direction 99”. It was submitted that the primary judge read TD [95] in a way that was not open.

18    The Minister disputed the appellant’s contentions. It was submitted that the primary judge correctly and fairly read the Tribunal’s reasons as applying the community expectations as expressed in paragraph 8.5(1). However, in written submissions, the Minister sought leave to rely upon a Notice of Contention to contend that even if the Full Court found that the Tribunal applied paragraphs 8.5(1) and 8.5(2) of Direction 110, the primary judge’s decision should nevertheless be affirmed because:

… any reliance on paragraph 8.5(2) was limited to the general expectation in the first sentence of the sub-paragraph, and not the specific expectation in the second sentence of the sub-paragraph which operates by reference to the categories of offences listed in sub-paragraphs (a)-(f) (see RRRB v Minister for Immigration and Citizenship [2026] FCA 337 at [35]-[36]).

19    In RRRB v Minister for Immigration and Citizenship [2026] FCA 337 at [35]-[36], McDonald J stated:

The list of kinds of offences in paragraphs (a)-(f) of cl 8.5(2) may be said to be “exhaustive” in the sense that the specified kinds of offences are the only ones which Direction 110 states must be treated as raising “serious character concerns”, such that the Australian community must be taken to expect that a non-citizen’s visa should remain cancelled. However, the list should not be regarded as “exhaustive” in the sense of preventing the Tribunal from having regard to other kinds of offending when considering whether the first sentence of cl 8.5(2) is relevant in the particular case before it. The first sentence of cl 8.5(2) relevantly states a general principle that non-revocation of the 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”. The fact that the kinds of offences listed in 8.5(2) does not include a range of offences which are generally regarded as extremely serious (such as murder, serious drug offences, or serious violent or sexual offences committed against persons who are not women, children or other vulnerable members of the community), tends to support this view.

The Tribunal in the present case was clearly aware that RRRB’s offending did not fall within the categories listed in paragraphs (a)-(f) of cl 8.5(2) of Direction 110. In saying that this list was not exhaustive, the Tribunal should be understood as recognising that the statements in the first sentence of cl 8.5(2) could apply in circumstances involving offences other than those listed. I do not think that the Tribunal was relevantly substituting its own view of the expectations of the Australian community; rather, it was adopting its own characterisation of RRRB’s offending, which it found to engage the general expectations of the Australian community which are expressed in cl 8.5(1) and the first sentence of cl 8.5(2). The Tribunal was entitled to take the view that RRRB’s conduct was “very serious”, and to regard RRRB as presenting “serious character concerns”, and to treat these conclusions as engaging those general expectations of the Australian community. As in CVDQ, I do not consider that the Tribunal’s reference to RRRB’s offending being “of serious character concern” demonstrates any relevant error in its decision.

(Emphasis added.)

20    The Minister submitted that McDonald J’s reasoning was correct and applied to the present case. It was submitted that his Honour’s reasoning was consistent with that of Collier J in LRMM v Minister for Immigration and Multicultural Affairs [2025] FCA 51 and Lee J in CVDQ v Minister for Immigration and Multicultural Affairs (No 2) [2025] FCA 1101.

21    The appellant did not oppose leave being granted to the Minister to file and rely upon the Notice of Contention (even though it raised a point that was not run in the proceedings below) but contended that if the Full Court dismissed the appeal only by reason of that Notice of Contention, the appellant should not be required to pay the Minister’s costs of the appeal. The appellant submitted that the decision in RRRB was distinguishable because there the relevant Tribunal member had expressly stated that the applicant’s offending had not fallen within paragraph 8.5(2)(a) to (f) of Direction 110. The Tribunal in this case had not done so.

22    As leave was not opposed, we granted the Minister leave to file and rely upon the Notice of Contention. We will return to the question of costs later in these reasons.

CONSIDERATION

23    The sole ground of appeal advanced by the appellant is that the primary judge erred at PJ [56] and [61]-[63] in finding that the Tribunal did not relevantly fail to comply with Direction 110 by “substituting its own view of the expectations of the Australian community”. We are not satisfied that the Tribunal did in fact substitute its own views of the expectations of the Australian community. The primary judge did not engage in the error alleged by the appellant.

24    The appellant’s argument in oral submissions focused on the various expectations expressed in paragraphs 8.5(1) and 8.5(2) of Direction 110, and less on the ground of appeal that the Tribunal substituted its own view of the expectations of the Australian community. In relation to the line of argument upon which oral submissions focused, the appellant accepted that, in order to succeed, he needed to show that the Tribunal relied, at least in part, on the expectation stated in the second sentence of paragraph 8.5(2). The appellant has not shown that the Tribunal relied on that part of paragraph 8.5(2).

25    Paragraphs 8.5(1) and 8.5(2) of Direction 110 require the Tribunal to consider and proceed on the basis of the expectations of the Australian community as stated in those paragraphs. As the High Court stated in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 280 CLR 265 at [51] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ) (in relation to the same consideration in an immaterially different form as contained in paragraph 8.4 of Direction 90), the effect of these paragraphs is that the relevant decision-maker is to proceed on the basis of the Australian Government’s views as to the expectations of the Australian community without that decision-maker “independently assessing the community’s expectations” in the particular case at hand. As the High Court further reasoned at [52], the relevant paragraph of the Direction is to be:

…understood as “directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community...

26    As essentially stated in Plaintiff S22 at [25]-[26], the expectations prescribed in paragraphs 8.5(1) and 8.5(2) of Direction 110 are as follows:

(a)    the Australian community expects non-citizens to obey Australian laws while in Australia: see the first sentence of paragraph 8.5(1);

(b)    as a norm, the Australian community expects the Australian Government not to allow a non-citizen to enter or remain in Australia where the person has engaged in “serious conduct” in breach of the expectation in the first sentence of paragraph 8.5(1): see the second sentence of paragraph 8.5(1);

(c)    in addition, visa-cancellation or refusal, or the non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences engaged in by the non-citizen is such that the Australian community would expect that the person should not be granted or continue to hold a visa: first sentence of paragraph 8.5(2); and

(d)    in particular, the Australian community expects that the Australian Government can and should refuse entry to or cancel a non-citizen’s visa if they raise character concerns through conduct of the kind specified in subparagraphs (a) to (f).

27    Whilst it may be accepted that the expectations of the Australian Community as stated in the second sentence of paragraph 8.5(2) apply where the person has engaged in conduct of the kind specified in subparagraphs (a) to (f), that does not derogate from the obligation imposed on the relevant decision-maker to proceed on the basis of the Australian community’s expectations as prescribed in paragraph 8.5(1) and the first sentence of paragraph 8.5(2). Once that is accepted, we read the Tribunal’s reasons as conveying that the second sentence of paragraph 8.5(2) was not exhaustive or determinative of the requirement for the Tribunal to proceed on the basis of the Australian community’s expectations as stated in paragraph 8.5(1) and the first sentence of paragraph 8.5(2). This is what the Tribunal was referring to in stating that the fact that the appellant’s crimes did not fall within those identified in paragraph 8.5(2) “does not mean that the stated community expectations should not apply”. In reasoning this way, the Tribunal was not seeking to substitute its own views as to the expectations of the Australian community but was seeking to ensure that it proceeded on the basis of the community’s expectations as expressed in paragraph 8.5(1) and the first sentence of paragraph 8.5(2). Nor was the Tribunal impermissibly relying on the expectation stated in the second sentence of paragraph 8.5(2).

28    Our reading of the Tribunal’s reasons is consistent with the Tribunal recognising in TD [92] and [94] that the force of the decisions of the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 and the High Court in Ismail is that it was not for the Tribunal to determine for itself the expectations of the Australian community by reference to an appellant’s personal circumstances, but rather its obligation was to apply the expectations as prescribed in paragraph 8.5. It is evident from these passages that the Tribunal was directing itself correctly to the task at hand, which was not to substitute its own views as to the expectations of the Australian community, but to apply those as prescribed in Direction 110.

29    Read in this context, the Tribunal in the first sentence of TD [95] was recognising that which was common ground, being that none of the appellant’s offending fell within the categories specified in the second sentence of paragraph 8.5(2). The next part of the Tribunal’s reasons at TD [95], in our view, indicates that the Tribunal was reasoning that the fact that the appellant’s offending did not fall within these categories did not mean that the expectations of the Australian community as stated in Direction 110 should not apply. That was a plainly correct statement. The fact that the appellant’s offending did not fall within the specified categories did not dispense with the requirement imposed on the Tribunal to apply the Australian community’s expectations as stated in paragraph 8.5(1) and the first sentence of paragraph 8.5(2). It is in that sense that we consider the Tribunal’s use of the words “suggestive” and “[not] determinative” are to be understood.

30    What is evident from TD [92]-[97] was that the Tribunal was seeking to ensure that it did apply the Australian community’s expectations as expressed in paragraphs 8.5(1) and 8.5(2), and not substitute its own views for those there prescribed. For that reason alone, we are satisfied that the ground of appeal advanced by the appellant should be dismissed.

31    Our reading of the Tribunal’s reasons is consistent with the dispositive conclusion as to this primary consideration reached by the Tribunal at TD [97] where it stated, by reference to the “nature of the offending and the potential harm it could have caused”, the consideration weighed heavily against revocation. Nothing in this paragraph indicates that the Tribunal substituted its own views as to the expectations of the Australian community, as opposed to characterising the appellant’s conduct in a way that was consistent with giving effect to the expectations as prescribed by paragraph 8.5(1) and the first sentence in paragraph 8.5(2).

32    We accept that our reading of the Tribunal’s reasons differs from that of the primary judge. The primary judge reasoned that, read fairly, the Tribunal was applying the expectations of the Australian community as prescribed in paragraph 8.5(1) only. We do not consider that the Tribunal was confining itself in that way to the exclusion of the expectations of the Australian community as prescribed in the first sentence of paragraph 8.5(2). Rather, the point that the Tribunal was making was that notwithstanding the fact that the appellant’s offending was not of the kind specified in the second sentence of that paragraph, it was nevertheless required to apply the expectations of the Australian community as stated in paragraph 8.5(1) and the first sentence of paragraph 8.5(2). To this end, we are satisfied that the Notice of Contention should be upheld.

33    It follows that the appellant has not established any error in the orders made by the primary judge.

COSTS

34    As adverted to above, the appellant submitted that if the Full Court dismissed the appeal only by reason of the arguments advanced by the Minister in support of its Notice of Contention, there should be no order as to the costs of the appeal.

35    Whilst we accept that the Notice of Contention was raised late and advanced an argument not run in the proceedings below, we also accept (as the appellant properly accepted) that the argument so raised related to a purely legal point and was based on an authority that post-dated the Primary Judgment. Ultimately, there was no prejudice that flowed to the appellant from the Notice of Contention in circumstances where the Full Court was required to make its own assessment as to the Tribunal’s reasons to dispose of the appeal. It is also relevant that having brought the appeal, the appellant did not seek to discontinue it after being served with the Notice of Contention.

36    In these circumstances, we consider that there is no reason to depart from the usual order that the appellant pay the Minister’s costs as agreed or assessed.

CONCLUSION

37    As referred to above, at the hearing, the Minister was given leave to rely on the Notice of Contention. For the foregoing reasons, the appeal should be dismissed and the appellant pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    3 September 2026