Federal Court of Australia

RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended originating application dated 13 October 2023 be dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

HORAN J:

Introduction

1    The applicant is an Iranian national who arrived in Australia in October 1990, when he was 18 years old. He was formerly the holder of a Return (Residence) (Class BB) Five Year Resident Return (subclass 155) visa. By an amended application dated 13 October 2023, the applicant seeks judicial review of a decision by the second respondent (the Tribunal) to affirm a decision of a delegate of the first respondent (the Minister) under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant’s Resident Return visa.

2    The Resident Return visa was mandatorily cancelled under s 501(3A) of the Migration Act on 21 July 2021, after the applicant was convicted of domestic violence and other offences for which he had been sentenced to an aggregate term of imprisonment of 16 months.

3    The applicant made written representations to the Minister about revocation of the cancellation decision. On 15 November 2022, a delegate of the Minister made a decision under s 501CA(4) of the Migration Act not to revoke the original decision.

4    The applicant applied to the Tribunal for a review of the non-revocation decision. On 20 January 2023, the Tribunal made an interlocutory decision to dismiss the application for review under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), on the basis that the mandatory cancellation decision was not legally effective and that there was therefore no power or authority to revoke that decision under s 501CA: RCLN v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 35. This conclusion was based on the decision in Pearson v Minister for Home Affairs (2022) 295 FCR 177, in which it had been held that an aggregate sentence for more than one offence was not a sentence to a term of imprisonment of 12 months or more for the purposes of s 501(7)(c) of the Migration Act.

5    The decision in Pearson was subsequently addressed by legislative amendments, which among other things retrospectively validated the cancellation of the applicant’s visa: Migration Amendment (Aggregate Sentences) Act 2023 (Cth). The applicant then re-applied to the Tribunal for review of the non-revocation decision under s 501CA(4).

6    On 26 May 2023, the Tribunal affirmed the non-revocation decision: RCLN v Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 1335 (Reasons).

7    In these proceedings, the applicant contends that the Tribunal’s decision is affected by jurisdictional error and should be quashed on one or more of the following grounds:

(1)    The applicant alleges that the Tribunal’s reasoning process was legally unreasonable, illogical or irrational in so far as it found that it was more probable than not that the applicant would reoffend “if he is released into the community”, in circumstances where the applicant had in fact been released from immigration detention and was in the community at the time of the Tribunal’s decision.

(2)    The applicant alleges that the Tribunal denied him procedural fairness by failing to address a substantial, clearly articulated argument that the expectations of the Australian community should be moderated on account of the applicant’s lengthy residence in Australia, ties to Australia and previous employment.

(3)    The applicant alleges that the Tribunal constructively failed to exercise its jurisdiction by wrongly concluding that there was no evidence of the impact of the decision on victims of the applicant’s offending, in circumstances where the Tribunal had before it a statement in support of the applicant from his former partner, referred to as JH, who was a victim of his past offending.

(4)    The applicant alleges that the Tribunal acted on a misunderstanding of the law by erroneously proceeding on the understanding that the power under s 501CA(4)(b) of the Migration Act involved a question of discretion: cf. Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315.

(5)    The applicant alleges that the Tribunal acted on a misunderstanding of the law by “double counting” the applicant’s criminal offending when assessing the weight to be given to the expectations of the Australian community.

8    The applicant contends that each of the above errors were material to the Tribunal’s decision, in that there was a realistic possibility that the Tribunal’s decision could have been different if any of the errors had not occurred.

9    For the reasons set out below, I do not consider that any of the grounds of review are established. Accordingly, the amended application is dismissed with costs.

Legislative framework

10    Section 501(3A) of the Migration Act provides for the mandatory cancellation of a visa held by a person in certain circumstances:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)     paragraph (6)(e) (sexually based offences involving a child); and

(b)     the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

11    Relevantly, s 501(6)(a) of the Migration Act provides that a person does not pass the character test “if the person has a substantial criminal record (as defined by subsection (7))”, and s 501(7)(c) provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.

12    Section 501CA of the Act applies if the Minister makes a mandatory cancellation decision under s 501(3A), which is referred to as the original decision. The Minister is required to give the person a written notice of the original decision and invite him or her to make representations to the Minister about revocation of that decision: s 501CA(3). Section 501CA(4) provides:

(4)     The Minister may revoke the original decision if:

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

(b)     the Minister is satisfied:

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

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

(Emphasis added.)

13    The Minister may give written directions to persons or bodies having functions or powers under the Migration Act about the performance of those functions or the exercise of those powers: s 499. On 3 March 2023, the Minister gave a written direction that applied to the exercise of the power conferred s 501CA(4): “Direction No. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (the Direction). The Direction applied to the Tribunal’s review of the non-revocation decision.

14    The terms of the Direction (and its predecessors and successors) have been considered in innumerable decisions of this Court. For present purposes, it suffices to identify the structure and content of the Direction as follows. The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Migration Act. After addressing the statutory objectives and the framework of principles within which such powers should be exercised, the Direction proceeds to set out the factors that must be considered in making decisions under ss 501 or 501CA, to the extent relevant in the particular case. The relevant considerations are classified as either “primary considerations” (which are identified in section 8) or “other considerations” (which are identified in section 9). Primary considerations should generally be given greater weight than the other considerations: s 7(2). One or more primary considerations may outweigh other primary considerations: s 7(3).

15    The five primary considerations under the Direction are:

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

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

(3)    the strength, nature and duration of ties to Australia;

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

(5)    expectations of the Australian community.

16    The other considerations include, but are not limited to:

(a)     legal consequences of the decision;

(b)     extent of impediments if removed;

(c)     impact on victims;

(d)     impact on Australian business interests

17    The primary and other considerations have been differently articulated under successive iterations of the written direction given by the Minister under s 499 of the Migration Act. The present case is concerned only with the Direction that was applicable at the time of the Tribunal’s decision.

18    So far as is relevant to the applicant’s challenge to the Tribunal’s decision, it is necessary to set out aspects of the Direction dealing with the protection of the Australian community (including the risk to the community if the non-citizen were to commit further offences or engage in other serious conduct), the expectations of the Australian community, and the impact on victims.

8.1    Protection of the Australian community

(1)     When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers 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.

(2)    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.

…

8.1.2    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)     In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. 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.

(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).

…

…

8.5    Expectations of the Australian Community

(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.

…

9.3    Impact on victims

(1)     Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

The Tribunal’s decision

19    The Tribunal’s written reasons are lengthy, extending to 173 pages. This is largely the result of the indiscriminate reproduction of multiple extracts from “NSW Police records” detailing the applicant’s interactions with police between 1994 and 2021. While those extracts are interspersed with references to the outcomes of proceedings before Local Courts in New South Wales in which the applicant was convicted of various offences, along with some associated sentencing remarks, the connection of each of the police reports with particular convictions is not always clear. Further, despite setting out verbatim the contents of case notes and reports authored by various police officers, the Tribunal did not make any clear findings of fact about the veracity of those reports or the incidents and allegations recounted therein. It is possible that the Tribunal simply treated those reports as accurate statements of fact, notwithstanding the hearsay nature of much of their contents.

20    The Tribunal’s approach in quoting at length from the police reports without clearly identifying the facts in issue or the findings made renders the Reasons somewhat unwieldy, and, in my respectful view, ought not to be regarded as a model for the preparation of reasons for decision. It should be borne in mind that a statement of reasons for decision is required to set out findings on material questions of fact, referring to the evidence or other material on which those findings were based. Nevertheless, any such criticism of the manner in which the Reasons were drafted does not itself amount to legal error, and was not squarely raised by the applicant in seeking to establish any of the grounds of review.

21    The Tribunal conducted a hearing on 8 May 2023, at which the applicant was legally represented and gave evidence by Microsoft Teams. The Tribunal noted at the outset of its reasons that the applicant had been “in the community since January 2023, notwithstanding the fact his visa has been cancelled”, having been an immigration detainee whose status was affected by the decision in Pearson prior to the legislative amendments to address that decision.

22    The Tribunal regarded the applicant’s evidence as generally unreliable and described him as a “poor historian”, noting that “[m]uch of his evidence was self-serving and frequently at odds with independent contemporaneous records”. The Tribunal also considered it significant that the applicant did not call any witnesses, noting in particular the absence of any corroborating evidence from his estranged former partner, JH, and the lack of an “independent contemporary psychological assessment of the applicant’s mental health, or his risk of reoffending”.

23    In July 1993, the applicant had married SD, with whom he had a son (RA). SD also had a child from a previous relationship (BD). The applicant and SD separated in 1996 and were divorced in 1999. The applicant commenced a relationship with JH in early 2003, with whom he had three children born respectively on 14 February 2006 (Child A), 13 March 2012 (Child C), and 7 May 2018 (Child D). JH had a child from another relationship who was born on 24 February 2009 (Child B). The Tribunal found that the applicant’s relationship with JH “appears now to be totally estranged”.

24    It is not in dispute that the applicant has an extensive criminal history. In Annexure B to the Reasons, the Tribunal set out a long list of convictions for a range of offences between 1994 and 2021, the most recent of which was the aggregate sentence that attracted the mandatory cancellation of the applicant’s Resident Return visa.

25    On 18 March 2011, a previous visa held by the applicant was cancelled on character grounds by a delegate of the Minister. However, this decision was set aside by the Tribunal on 17 June 2011, and substituted with a decision not to cancel the applicant’s visa under s 501(2) of the Migration Act.

26    There was no dispute before the Tribunal that the applicant failed the character test. The issue for determination was whether there was “another reason” why the original decision should be revoked under s 501CA(4). After identifying that question in those terms, the Tribunal acknowledged that it was bound by s 499(2A) of the Migration Act to comply with the Direction “[i]n considering whether to exercise this discretion”: Reasons at [207]. It may be inferred that the Tribunal used “this discretion” as a reference to the question of whether there was another reason why the original decision should be revoked.

27    In addressing Primary Consideration 1 (the protection of the Australian community), the Tribunal found that the applicant’s criminal offending was extremely serious, and included family violence against his partners, serial offending and repeated disregard for court orders. The Tribunal noted that the applicant had continued to offend after having received formal warnings about the consequences for his migration status, as well as the cancellation of a previous visa that was reinstated by the Tribunal. The Tribunal considered that the applicant had “exhibited contempt for the laws of this country” and had been “a serial burden on law enforcement, corrections and the justice system generally”: Reasons at [228].

28    The Tribunal addressed the risk to the Australian community should the applicant commit further offences or engage in other serious conduct (see para 8.1.2 of the Direction). The Tribunal found that, if the applicant were to reoffend, “the consequences would be extremely serious, possibly most serious for his family, or any intimate partner that he may have”, and that “the gravity of his offending is so serious that even a slight risk of reoffending is unacceptable”: Reasons at [241].

29    In relation to the likelihood of the applicant engaging in further criminal or other serious conduct, the Tribunal made the following findings:

Likelihood of engaging in further criminal or other serious conduct

242.     I note that the Applicant was assessed by NSW Corrections on 13 April 2021 as being a medium risk of reoffending. The Applicant’s counsel conceded that this was the best available risk assessment.

243.     Notwithstanding his various attempts at rehabilitation, the Applicant was still using methamphetamine as recently as February 2021.

244.     Based on the Applicant’s history and the factors set out above I consider that it is more probable than not, that the Applicant will reoffend if he is released into the community. It is likely, based on his history, that he may also return to drug use. This would further elevate his prospects of reoffending significantly.

(Emphasis added; citations omitted.)

30    The Tribunal concluded that Primary Consideration 1 weighed “extremely heavily” against revocation of the cancellation decision: Reasons at [245].

31    The Tribunal also found that Primary Consideration 2 (family violence) weighed “extremely heavily” against revocation, referring to the applicant’s “long history of family violence with two different partners, and possibly a third” over a 20-year period and his convictions for “stalking, assault and breaches of AVO’s”: Reasons at [247].

32    The Tribunal considered that Primary Consideration 3 (the strength, nature and duration of ties to Australia), “taken at its best” for the applicant, weighed “slightly” in favour of revocation of the cancellation decision: Reasons at [250]-[258]. The Tribunal found that the applicant had no family in Australia other than his former partners and his children. The Tribunal further found that the applicant’s relationship with SD and her adult children was “non-existent”, and his relationship with JH and her children was “now virtually non-existent”. The Tribunal noted that the applicant had begun offending “almost immediately” after he arrived in Australia as an 18-year-old, and had “spent very little of his time here making any sort of positive contribution to our community”.

33    The Tribunal found that Primary Consideration 4 (the best interests of minor children) weighed “slightly” in favour of revocation, assuming in the applicant’s favour that he did not resume drug use and obtained paid work: Reasons at [264]. The Tribunal specifically addressed the relevant factors in relation to each of the applicant’s minor children in Australia. The Tribunal noted that the applicant had not been a “stable parental figure” in each child’s life, having spent much of their lives incarcerated or estranged from his family, and having perpetrated family violence on their mother, JH. The Tribunal found that each of the children wished to have no contact with the applicant, and considered it “far from certain” that the applicant would be able to obtain orders for periodic access to his children: Reasons at [261]-[262]. The Tribunal accepted that it was possible that the applicant could make some financial contribution to the children if he were to remain in Australia and be gainfully employed.

34    After considering the applicant’s criminal record and other matters in the light of para 8.5 of the Direction, the Tribunal found that Primary Consideration 5 (the expectations of the Australian community) weighed “extremely heavily” against revocation of the cancellation decision.

35    The Tribunal then considered each of the other considerations in para 9 of the Direction, including non-refoulement obligations, the extent of impediments if removed, impact on victims and impact on Australian business interests. The Tribunal accepted that the extent of impediments if removed weighed heavily in favour of revocation, and otherwise found that each of the other considerations was “neutral”. Relevantly, in relation to “impact on victims” (addressed in para 9.3 of the Direction), the Tribunal’s finding was made on the basis that “[t]here is no evidence on this topic”.

36    After weighing up all of the primary and other considerations, the Tribunal concluded:

304.     The Applicant has been a serial offender. He has repeatedly committed very serious offences including family violence, firearms offences, drug offences and driving offences. He has breached bail and parole. He has ignored repeated warnings regarding the possible consequences of his offending for his visa. On the other hand, he has lived in this country for most of his adult life, he has children here from whom he is estranged, and he would undoubtedly find it very difficult to return to Iran.

305.     In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.

Consideration

Ground one

37    By this ground, the applicant challenges the Tribunal’s finding in relation to the likelihood of the applicant engaging in further criminal or other serious conduct, for the purposes of para 8.1.2(2)(b) of the Direction.

38    The applicant submits that the Direction required the Tribunal to take into account evidence of rehabilitation “giving weight to time spent in the community since their most recent offence”. However, the applicant contends that the Tribunal, when finding that it was more probable than not that the applicant would reoffend, proceeded on the erroneous basis that the applicant was not in the Australian community at the time of its decision. This is said to be revealed by the Tribunal having made a finding that the applicant “will reoffend if he is released into the community”: Reasons at [244] (emphasis added). The applicant submits that this demonstrates non-compliance with para 8.1.2(2)(b) of the Direction and legal unreasonableness, amounting to a constructive failure to exercise jurisdiction by the Tribunal.

39    The applicant further submits that this error “infected the Tribunal’s pathway of reasoning” in relation to Primary Consideration 1, but for which the Tribunal might have moderated the adverse weight attributed to this primary consideration.

40    In my view, as the Minister submitted, this ground fails on its premise. On a fair reading of the Tribunal’s reasons as a whole, the Tribunal was clearly cognisant of the fact that the applicant was in the community at the time of its decision. At the commencement of its reasons, the Tribunal expressly acknowledged that the applicant had been “in the community” since January 2023, notwithstanding the cancellation of visa, as a result of the decision in Pearson: Reasons at [5]. The Tribunal made numerous other references to the fact that the applicant had been released, was not detained “at present” and had not been detained since January 2023, and was “currently living in the community”: Reasons at [194], [199], [201], [281]. In the context of those express references, it is not open to treat the finding at para [244] of the Reasons as having been made in ignorance of the applicant’s situation. The preferable interpretation, if not the only plausible interpretation, of that paragraph of the Reasons is that the Tribunal was referring to the likelihood of the applicant reoffending if he were permitted to remain in the community as a lawful non-citizen. It is not plausible that the Tribunal overlooked or “forgot” that the applicant had been in the community when it addressed Primary Consideration 1.

41    More generally, para 8.1.2(2)(b) of the Direction relevantly requires the Tribunal to take into account “information and evidence on the risk of the non-citizen reoffending” and “evidence of rehabilitation achieved by the time of the decision” for the purposes of making a finding on the likelihood of the non-citizen engaging in further criminal or other serious conduct. In the context of taking into account evidence of rehabilitation achieved by the time of the decision, the Tribunal must give weight to any time spent by the non-citizen in the community since their most recent offence.

42    In the relevant paragraphs of the Reasons, the Tribunal had regard to a risk assessment by New South Wales Corrections and referred to evidence as to the applicant’s “various attempts at rehabilitation”. At the time of the Tribunal’s decision on 26 May 2023, the applicant had been in the community for only a relatively brief period, having been released from immigration detention at some time in January 2023 as a result of the decision in Pearson (which was handed down on 22 December 2022). The applicant had again become an unlawful non-citizen when the cancellation of his visa was reinstated on 17 February 2023. Although the legislative amendments that validated Pearson-affected visa cancellation decisions were intended to result in the return of those non-citizens to immigration detention (see the Explanatory Memorandum to the Migration Amendment (Aggregate Sentences) Bill 2023 at pp 3, 14, 16), it appears that the applicant had not been re-detained as at the date of the hearing before the Tribunal.

43    Nevertheless, the applicant’s written statement of facts, issues and contentions before the Tribunal filed on 30 March 2023 (SOFIC) did not specifically rely on the period that he spent in the community since his release from immigration detention as evidence of his rehabilitation. Reading the Tribunal’s reasons fairly and as a whole, and on the basis that the Tribunal was clearly aware that the applicant had been in the Australian community since January 2023, I am not prepared to infer that the Tribunal failed to give weight to the time spent by the applicant in the community when taking into account the evidence of his rehabilitation.

44    It is therefore unnecessary to determine whether any, and if so what, legal error might arise if the Tribunal had made the factual error that is alleged by the applicant, namely by proceeding on an incorrect basis that the applicant was in immigration detention at the time of its decision. It may be doubted that any such error would itself amount to illogicality or irrationality such as would constitute legal unreasonableness: cf. Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [29]-[35] (Allsop CJ, Besanko and Callaghan J); King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 at [53]-[55] (Anderson, Feutrill and Raper JJ). A wrong finding of fact would not be sufficient to establish legal or jurisdictional error: see e.g. Waterford v The Commonwealth (1987) 163 CLR 54 at 77 (Brennan J). It would be necessary to establish that the finding was made without any evidence or other supporting material and was critical to the Tribunal’s decision, or perhaps that it led the Tribunal to misapply the Direction or otherwise overlook a relevant consideration. But the foundation for any such argument has not been established.

45    Accordingly, Ground 1 is not made out.

Ground two

46    This ground arises from the following submission that was advanced by the applicant before the Tribunal in his SOFIC in the context of Primary Consideration 5 (expectations of the Australian community):

We concede that this consideration weighs in favour of non-revocation. However, we submit that the Applicant has lived in Australia all of his life and all his family and connections are here. He has contributed positively to the community through his previous long-term employment, and as such the Australian community may therefore afford a higher level of tolerance of criminal conduct in relation to him. This consideration, therefore, should weigh moderately against the Applicant.

47    The applicant contends that this submission, which was described as the “tolerance submission”, amounted to a substantial, clearly articulated argument that the weight to be afforded to the expectations of the Australian community should be “moderated” in the light of the applicant’s lengthy residence in Australia, his ties to Australia and his previous employment. The substance of the tolerance submission was said to be “that in assessing weight for the purposes of the expectations of the Australian community, the Tribunal would consider various specific circumstances related to the applicant”. The applicant contends that the Tribunal failed to address or engage with this submission and thereby denied him procedural fairness: see generally NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55], [63] (Black CJ, French and Selway JJ).

48    After summarising para 8.5 of the Direction, the Tribunal addressed Primary Consideration 5 at paras [271]-[272] of the Reasons:

Analysis – Allocation of Weight to this Primary Consideration 5

271.    Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:

(a)    the Applicant’s criminal record as set out in Annexure B.

(b)     The other matters set out in detail above, in particular family violence, drug offences, firearms offences, ignoring repeated warnings from the Respondent and repeated breaches of various Court Orders.

Conclusion: Primary Consideration 5

272.     Primary consideration 5 weighs extremely heavily against revocation of the cancellation of the Applicant’s visa.

49    The applicant submits that the Tribunal did not even refer to the tolerance submission as set out at [46] above, let alone “intellectually engage” with that submission. Accordingly, the applicant submits that the natural inference is that the submission was overlooked by the Tribunal.

50    In order validly to carry out its statutory task of review, the “requisite level of engagement” by the Tribunal with the applicant’s submissions depends on the nature, form and content of those submissions, including their length, clarity and degree of relevance: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ). In that regard, a majority of the High Court in Plaintiff M1 sounded a cautionary note in relation to the deployment of labels such as “active intellectual process” or “proper, genuine and realistic consideration”, lest they provide an invitation to scrutinise the substantive merits of the decision under review: Plaintiff M1 at [26]. Notwithstanding this caveat, however, the line of authority in which such formulae have been used would appear to remain good law.

51    The principles set out in the Direction specifically contemplate that the “level of tolerance” of criminal or other serious conduct committed by a non-citizen may vary by reference to the length of time that the non-citizen has lived in the Australian community: see paras 5.2(4), (5). The matter of “tolerance” is also referred to in para 8.1.2(1) of the Direction in the context of the diminishing tolerance of the Australian community for any risk of harm as the seriousness of the potential harm increases if a non-citizen were to commit further offences or engage in other serious conduct.

52    Nevertheless, the Direction does not expressly require decision-makers to moderate the expectations of the Australian community in the light of the specific circumstances of the non-citizen, including their length of residence, past employment or family connections. The strength, nature and duration of ties to Australia is separately addressed by Primary Consideration 3, which must be weighed together with the other primary and other considerations including Primary Consideration 5. In this regard, the primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations: see the Direction, paras 7(2), (3).

53    The centrality of community expectations is identified in the principles set out in para 5.2 of the Direction that provide the framework within which the powers conferred by ss 501 and 501CA must be exercised: see in particular paras 5.2(2), (3). This is elaborated as a primary consideration in para 8.5 of the Direction. In particular, para 8.5(4) of the Direction requires decision-makers such as the Tribunal to “proceed on the basis of the Government’s views” as to the expectations of the Australian community as a whole, as articulated in subparas (1) to (3) of para 8.5, “without independently assessing the community’s expectations in the particular case”. The articulation of community expectations is directed to the kinds of criminal conduct or other serious conduct in respect of which the Australian community expects that the Government can and should refuse or cancel visas, “regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community”.

54    As the High Court recently stated in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 98 ALJR 196 at [38] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ) in relation to the equivalent paragraph in an earlier version of the Direction:

Paragraph 8.4 (“Expectations of the Australian community”) involves an assessment in which the decision-maker is required to consider that the Australian community, as a norm, expects the Australian Government not to allow a non-citizen who has engaged in serious conduct in breach of Australian law to enter or remain in Australia. This assessment under para 8.4 thus focuses on the expectations that Direction 90 itself (by para 8.4(1)-(3), applied as required by para 8.4(4)) instructs the decision-maker that the Australian community holds about the response of the Australian Government to a non-citizen seeking to enter or remain in Australia if they have committed serious breaches of Australian law.

55    Later in its reasons, the Court said (at [51]-[52]):

Further, 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. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate’s reasoning accords with these requirements.

56    The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen: compare, in relation to an earlier iteration of the Ministerial direction: FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66]-[67], [74]-[75] (Charlesworth J), [91]-[93], [103]-[104] (Stewart J); see also CKL21 v Minister for Home Affairs (2022) 293 FCR 634 at [29]-[30] (Moshinsky, O’Bryan and Cheeseman JJ). The “degrees of tolerance” referred to elsewhere in the Direction “are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion” (or, in the present context, the determination whether there is another reason to revoke the original cancellation decision), and “in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences”: FYBR at [77] (Charlesworth J). In other words, the decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations, and adjust the relative weight to be given to each of the primary and other considerations accordingly.

57    In the present case, the Tribunal concluded that Primary Consideration 5 weighed “extremely heavily against revocation of the cancellation decision”, having regard to the applicant’s criminal record and other matters relating to his conduct in disregard or contempt for the law. On the proper construction of para 8.5 of the Direction, the matters on which the applicant relies concerning his ties to Australia were not directly relevant to this primary consideration and were not capable of altering the Tribunal’s finding about the expectations of the Australian community. Rather, those matters were relevant to other considerations which might potentially offset the heavy weight that was accorded to Primary Consideration 5. In this way, the matters specific to the applicant’s personal circumstances were relevant to the relative weight to be accorded to each of the primary and other considerations, including Primary Consideration 5.

58    Conversely, for example, if the strength, nature and duration of ties to Australia or the best interests of minor children in Australia were found by the Tribunal to weigh heavily in favour of revocation, such findings would not themselves need to be qualified by the expectations of the Australian community as articulated in para 8.5 of the Direction. Rather, the findings on each of the primary and other considerations would be taken into account where relevant to the decision, and given such relative weight as ultimately considered appropriate by the Tribunal.

59    That is not to suggest that the balancing process entailed in the application of the Direction involves a “mathematical” exercise, as opposed to an instinctive synthesis requiring the evaluation of all relevant factors: Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 at [21]-[22] (Kennett J). But it would render the Direction unworkable if the Tribunal were precluded from separately or independently addressing and attaching weight to each of the primary and other considerations, before ultimately engaging in the balancing of all relevant considerations: cf. FYBR at [53], [74].

60    The Tribunal was prepared to accept that Primary Consideration 3 weighed slightly in favour of revocation of the cancellation decision, taking into account the applicant’s family connections together with his past employment and his contribution to the community since his arrival in Australia. Nevertheless, it is clear that the Tribunal took a fairly dim view of the applicant’s contribution to the community, noting that he had commenced offending almost immediately after his arrival and had spent most of his time in Australia unemployed or living off the proceeds of crime, and finding that he had been “overwhelmingly a burden on our community”: Reasons at [252]-[253]. Further, the Tribunal did not accept that the applicant had a current or ongoing relationship with his former partners or any of his children: Reasons at [250], [255]-[256]. His relationship with each of his children was specifically addressed in the context of Primary Consideration 4. All of these matters were brought to account in the Tribunal’s ultimate balancing of the primary and other considerations: see Reasons at [297]-[305].

61    In submitting to the Tribunal that Primary Consideration 5 “should weigh moderately against the Applicant” (see [46] above), the applicant must be understood to have submitted that other considerations relating to the applicant’s ties to Australia should be given greater weight (in favour of revocation) than that accorded to Primary Consideration 5 (against revocation). Similarly, in this Court, the applicant submitted that engagement with his submission “could realistically have led the Tribunal to moderate and offset the adverse attribution of weight to [Primary Consideration 5], ultimately impacting the final balancing exercise that had to be undertaken by the Tribunal” (emphasis added).

62    However, the weight to be accorded to each of the primary and other considerations was a matter for the Tribunal. There is nothing to suggest that the Tribunal failed to perform the task of considering and balancing the competing considerations when determining whether there was another reason to revoke the cancellation decision. The Tribunal was not required to address the applicant’s tolerance submission in the context of considering what weight should be given to the expectations of the Australian community under Primary Consideration 5, as opposed to the relative weight to be given to the various primary and other considerations in the ultimate balancing process. Accordingly, no inference arises that the applicant’s submission was overlooked by the Tribunal. The Tribunal’s finding that the expectations of the Australian community (as articulated in para 8.5 of the Direction) weighed “extremely heavily against revocation” was not about the relative weight to be accorded to that consideration in the balancing process, and did not preclude other considerations from being weighed in favour of revocation, whether slightly or heavily. The matters to which the applicant’s submission was directed were directly addressed in the context of other primary considerations, and were thereby taken into account in the “final balancing exercise” that was performed by the Tribunal at paras [297]-[305] of the Reasons.

63    This conclusion is consistent with the decision in Ismail, which was handed down by the High Court after judgment was reserved in the present matter. Following Ismail, each of the parties was given leave to file supplementary written submissions addressing the implications of the High Court’s decision on the present application.

64    In Ismail, the High Court dismissed an application to review a decision of a delegate of the Minister to refuse to grant the plaintiff a Resident Return visa under s 501(1), applying a previous iteration of the Ministerial direction made under s 499 of the Migration Act (Direction 90). The delegate had given the expectations of the Australian community “significant weight” in favour of refusal of the plaintiff’s visa application: Ismail at [48]. The plaintiff relevantly alleged that the delegate had misapplied the relevant paragraph of the Direction 90 “in that, when weighing the expectations of the Australian community, the delegate was required to consider those expectations in light of the applicant’s personal circumstances and did not do so”: Ismail at [47]. On judicial review before the High Court, the plaintiff advanced a similar argument to that made by the applicant in the present case, namely that the part of the delegate’s reasons under the heading “Expectations of the Australian community” did not refer to information submitted by or on behalf of the plaintiff about his personal circumstances, and that “as the expectations of the Australian community would have been affected by knowledge of the plaintiff's personal circumstances, the delegate was required to, but did not, weigh those personal circumstances in deciding what ultimate weight to give to the expectations of the Australian community”: Ismail at [49]. Rather, the delegate had considered information about the plaintiff’s personal circumstances only in the context of the “other considerations” specified in Direction 90.

65    The High Court unanimously rejected the plaintiff’s argument, concluding that no inference could be drawn that the delegate had not weighed the plaintiff’s personal circumstances “in deciding what ultimate weight to give to the expectations of the Australian community”: Ismail at [50]. The Court considered that the “sequential structuring” of reasons for decision, in dealing with each topic under a separate heading, did not itself give rise to an inference “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”, nor that the decision maker “had quarantined the assessment of each topic from every other topic”: Ismail at [50], see also at [45]. The Court relevantly concluded (at [50]):

… in the present case, moreover, the concluding section of the delegate’s reasons discloses an overall weighing of all considerations against each other. In so doing, the delegate expressly weighed the plaintiff’s personal circumstances against, amongst other things, the expectations of the Australian community.

66    In my view, the High Court’s reasoning in Ismail is directly applicable to the present case. It was open to the Tribunal to conclude that the expectations of the Australian community weighed extremely heavily against revocation, having regard to the applicant’s criminal history and the nature of the offences of which he had been convicted. The Tribunal took into account the applicant’s personal circumstances in the context of other considerations, including in particular Primary Consideration 3 and Primary Consideration 4. The Tribunal ultimately engaged in an overall weighing of all of the primary and other considerations in the concluding section of the Reasons. The Tribunal summarised the weighting given to each of the considerations, before synthesising them in the following paragraph (Reasons at [304]):

The Applicant has been a serial offender. He has repeatedly committed very serious offences including family violence, firearms offences, drug offences and driving offences. He has breached bail and parole. He has ignored repeated warnings regarding the possible consequences of his offending for his visa. On the other hand, he has lived in this country for most of his adult life, he has children here from whom he is estranged, and he would undoubtedly find it very difficult to return to Iran.

67    It is clear from this paragraph that the Tribunal brought to account the factors personal to the applicant that weighed in favour of revocation of the cancellation decision. In the circumstances, it cannot be inferred that the Tribunal failed to consider the tolerance submission made by the applicant about his employment and family connections to Australia. On the contrary, it is clear that the Tribunal did consider those matters in its overall weighing of the expectations of the Australian community with all other relevant considerations.

68    The applicant submitted that Ismail should be distinguished on the basis that the High Court was dealing with a different argument, namely that the delegate had misapplied Direction 90 by failing to consider information relevant to a mandatory consideration (the weight to be given to the expectations of the Australian community), rather than an alleged denial of procedural fairness as in the present case. I do not accept that this is a material distinction, bearing in mind that there is no “rigid taxonomy” of jurisdictional error (see e.g. Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [73] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) and there can often be overlap between different grounds of judicial review. The written and oral submissions of the plaintiff in Ismail relied heavily on the decisions in Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559 and Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396 in support of the relevant ground of review, and the applicant’s submissions in the present case invoked the same cases as being “very similar” to the claim advanced in Ground 2 of the amended application.

69    The denial of procedural fairness pleaded by the applicant in the present case involves an alleged failure by the Tribunal to have regard to his submission that the weight accorded to Primary Consideration 5 should be “moderated” by specific personal circumstances. As discussed above, this submission cannot be understood as having been directed to the content of the expectations of the Australian community for the purposes of Primary Consideration 5, as any such submission would be inconsistent with the reasoning in both FYBR (and now also Ismail). This was accepted by the applicant in his supplementary written submissions. Rather, the submission was directed to the relative weight to be given to Primary Consideration 5 in the overall balancing exercise. The essential step in the applicant’s argument is that the Tribunal “overlooked” his submission and failed to consider his personal circumstances as potentially offsetting the weight that was given to the expectations of the Australian community in the ultimate balancing of all considerations in favour and against revocation. This raises precisely the same issue as was determinative in Ismail, that is, whether it was open to infer that the Tribunal had not weighed the applicant’s personal circumstances when deciding what ultimate weight to give to the expectations of the Australian community.

70    In circumstances where the Tribunal did consider the applicant’s personal circumstances in the context of other considerations (including the length of his residence in Australia, his family and other connections to Australia, his past employment and his contribution to the community) and engaged in an overall weighing of all considerations, the inference is not open that the Tribunal failed to consider whether the applicant’s personal circumstances should moderate the “extremely heavy” weight that was given to the expectations of the Australian community.

71    For completeness, I note that the applicant relied on a number of previous decisions of this Court in support of his submissions on Ground 2: in addition to Ali and Kelly, the applicant referred to QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 and Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 155. In each of those cases, the Court upheld an argument that the Minister or the Tribunal failed to respond to a clearly articulated submission about the applicant’s personal circumstances when assessing the weight to be given to community expectations: see QHRY at [44]-[46] (Rangiah J); Kelly at [98]-[101], [107]-[112] (Beach J); Ali at [86]-[88], [91]-[93] (Bromberg J); Dunasemant at [55], [58]-[60] (Davies, Rangiah and Cheeseman JJ).

72    In my view, each of the above decisions are properly regarded as having been directed to the decision-maker’s overall weighing process, when assessing the relative weight to be given to the expectations of the Australian community. On the particular facts in each case, the Court drew an inference that, when performing the final balancing of the primary and other considerations, the decision-maker had overlooked or failed to deal with representations made by the applicant about the impact of the decision on his or her personal circumstances.

73    Thus, in Kelly at [71] and [97], Beach J specifically referred to countervailing factors that “might cause the decision-maker to give lesser weight to community expectations, relative to other considerations” (at [71] (emphasis added)), and the need for individual factors to “brought to account when deciding what relative weight to give community expectations (at [97] (emphasis added)).

74    Similarly, in Ali at [81] and [86]-[87], Bromberg J was clearly dealing with an argument that the applicant’s personal circumstances should have been taken into account when considering the relative weight to be accorded to the community expectations consideration.

75    The decision in Dunasemant turned primarily on the question of materiality, but was also directed to the effect of a failure to consider a claim of hardship in respect of the appellant’s mother when balancing the community expectations consideration against other relevant considerations. Thus, the Full Court in Dunasemant was concerned with the Tribunal’s failure to “take into account a factor that it was obliged to weigh in the balance” in determining the (relative) weight to be given to the expectations of the Australian community, in circumstances where the Tribunal “could have given this primary consideration less weight in its assessment of factors against revocation”, and “in the exercise of its function under s 501CA(4)(b)(ii)” (i.e. determining whether there was another reason to revoke the original decision): Dunasemant at [58], [60].

76    The decision in QHRY is perhaps more equivocal. It appears that Rangiah J concluded at [44] that the Tribunal overlooked the applicant’s submission that the expectations of the Australian community should not weigh heavily against him in the light of his personal circumstances, when it concluded that the expectations of the Australian community weighed very heavily in favour of refusal of the visa. Based on certain language used by the Tribunal in its reasons, Rangiah J rejected a submission that the relative weight of that primary consideration had been assessed in the Tribunal’s “final, overall consideration of all the relevant factors”: QHRY at [46]-[47]. Rather, the Tribunal had first decided what weight should be given to the expectations of the Australian community, without taking into account the impact of the decision on the applicant’s partner and children, and had then assessed the primary considerations and other considerations in combination “having regard to the weighting already decided”.

77    The above decisions can be distinguished from the present case, in which I have concluded that the Tribunal did perform an overall weighing of all relevant factors, including the tolerance submission (in the light of the applicant’s personal circumstances) and the expectations of the Australian community. The Tribunal did not treat its intermediate finding that the expectations of the Australian community weighed extremely heavily against revocation as determinative of the outcome of its decision whether there was another reason to revoke the original cancellation decision.

78    Finally, I note that this Court has rejected similar contentions in two recent decisions.

79    In QDWQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 178, Katzmann J distinguished the decisions in Kelly and Ali and concluded that the Tribunal had taken into account the applicant’s specific personal circumstances but had found that they were outweighed by countervailing considerations: QDWQ at [36]. Justice Katzmann rejected the applicant’s complaint that the Tribunal erred by not weighing his specific personal circumstances “at an anterior time, namely, before deciding what weight should be given to primary consideration 5”: QDWQ at [44]. In contrast to the present case, the applicant in QDWQ “did not contend that a clearly articulated argument was put to the Tribunal that the weight to be given to community expectations should be modified on account of his personal circumstances”, but rather submitted that community expectations were affected by his personal circumstances: QDWQ at [51]. That submission had been “rightly rejected” by the Tribunal in the light of the decision in FYBR: QDWQ at [33], [46]-[47], [51], [54]-[56]. Further, Katzmann J held at [61] that the High Court’s decision in Ismail was fatal to the applicant’s argument in that case.

80    In Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 791, the Tribunal had directly addressed an argument advanced by the applicant about the relevance of his personal circumstances to Primary Consideration 5, relying on the decisions in Kelly and Ali. The Tribunal found that such matters were not relevant to the expectations of the Australian community, citing FYBR, but could instead be taken into account separately and were “capable of off-setting the weight of this Primary Consideration in the final weighing exercise”: see Prasad at [9]. The applicant sought to challenge the Tribunal’s approach as involving a misunderstanding of the law: Prasad at [11]. The applicant’s argument was rejected by Shariff J, who held that the position was the same as that addressed in Ismail at [51]-[52] and that para 8.5 of the Direction necessarily excludes consideration of the applicant’s personal circumstances, as opposed to “whether Primary Consideration 5 should be given more or less relative weight as against other considerations, including the applicant’s personal circumstances, in the overall balance”: Prasad at [17], [21]. In reaching this conclusion, Shariff J distinguished the decision in Dunasemant as having been concerned with an earlier and differently expressed Ministerial direction: Prasad at [18]-[20].

81    In summary, in the present case the Tribunal was not required to take into account the applicant’s personal circumstances or the associated tolerance submission when addressing Primary Consideration 5, and did not fail to have regard to the applicant’s personal circumstances and his submissions when considering the overall weighting of all primary and other considerations in favour of and against revocation of the original decision. It follows that Ground 2 is not established.

Ground three

82    The applicant submits that the Tribunal was required by paras 9.1(c) and 9.3 of the Direction to consider the impact of the decision under s 501CA on victims of the applicant’s criminal behaviour, and the family members of those victims, where information is available and the applicant (as the non-citizen who has sought revocation of the cancellation decision) has been afforded procedural fairness.

83    In the present case, the applicant submits that there was information available to the Tribunal about the impact on victims that was relevant to para 9.3 of the Direction, namely a statement from the applicant’s former partner, JH. It may be accepted for present purposes that JH was a victim of some of the applicant’s family violence offending. She had provided a statement to the Department dated 14 April 2022 that was addressed “To Whomever it may concern”, in which she made representations about the effects of the applicant’s visa cancellation on her and her four children. Among other things, JH had stated that she was “financially, emotionally and physically scraping the bottom of the barrel trying to raise our children on my own”, and that each of her children had behavioural and mental health issues arising from the possible removal of the applicant from Australia.

84    The applicant contends that, given JH’s status as a victim, the Tribunal was required to take her statement into account as a mandatory relevant consideration.

85    The manner in which the Tribunal dealt with JH in its Reasons requires some elaboration.

(a)    The Tribunal referred to and reproduced the statement from JH dated 14 April 2022: Reasons at [189]. The Tribunal also referred to a statement by the applicant dated 4 April 2022, in which he had referred to JH as his “beautiful partner” and stated that he adored her and his four children, and that they needed him in their lives for financial and emotional support: Reasons at [188]. Each of these statements had been provided to the Department prior to the primary non-revocation decision, in response to the invitation to provide representations about revocation of the cancellation of the applicant’s visa.

(b)    The Tribunal specifically noted that, as the applicant had not called any witnesses, “there was no corroboration of his evidence and statements from his estranged partner, JH, regarding any prospects of ongoing contact or connection”: Reasons at [7].

(c)    The Tribunal found that the applicant’s relationship with JH “appears now to be totally estranged”: Reasons at [75]. Further, on 24 January 2023, the applicant claimed that he had been assaulted by JH, and he had made a complaint to police that resulted in a provisional apprehended violence order being issued against JH on the following day. The Tribunal regarded this as “indicative of the state of the current relationship between the Applicant and JH”: Reasons at [195].

(d)    In the context of Primary Consideration 3 (the strength, nature and duration of ties to Australia), the Tribunal found that the applicant’s present relationship with JH and her children was “now virtually non-existent”, referring to his recent application for an apprehended domestic violence order and his “long history of family violence against her”: Reasons at [250], [255]. The Tribunal found that “[o]n his own admission, JH and his children now want nothing to do with him”, and that he did not currently have any agreement or pending application for access to his children: Reasons at [250]. The Tribunal found that the applicant had been in prison or absent during much of the children’s lives, and had exposed them to family violence. The Tribunal described the applicant’s past relationship with JH and the children as “intermittent, unstable and violent” and noted that, while the children probably had some connection with him, they wanted nothing to do with him at present: Reasons at [256].

(e)    The Tribunal addressed the impact on each of the applicant’s children with JH in the context of Primary Consideration 4 (the best interests of minor children in Australia): Reasons at [261]-[264]. This included specific consideration of the representations made by JH in her “uncorroborated” statement dated 14 April 2022 concerning the welfare of each of the children: Reasons at [261].

86    As discussed above, when the Tribunal came to address “Other Consideration (c)” in relation to impact on victims, it stated that “[t]here is no evidence on this topic”, and concluded that this consideration was “neutral”. That finding was consistent with the applicant’s SOFIC, in which his legal representative had relevantly submitted on his behalf (at [46]):

c) Impact on Victims

46.     There is no evidence before the Tribunal about any victims of the Applicant’s offending. As such the Tribunal should allocate neutral weight to it.

87    In the light of the applicant’s submission, it is perhaps unsurprising that the Tribunal dealt with paras 9(1)(c) and 9.3 of the Direction in the manner in which it did. It may be inapt to characterise the applicant’s position as a “concession”, as the Minister sought to do, bearing in mind that the proceedings before the Tribunal were inquisitorial rather than adversarial. Nevertheless, the Tribunal’s findings must be understood in the context of the case that was advanced by the applicant before it. While a concession does not relieve the Tribunal of its duty to make the correct or preferable decision on all relevant aspects of the matter before it, the Tribunal is permitted to reach that decision by reference to the concession as well as to its findings on disputed questions: Peacock v Repatriation Commission (2007) 161 FCR 256 at [23] (Downes, Lander and Buchanan JJ); and see generally Repatriation Commission v Warren (2008) 167 FCR 511 at [78] (Lindgren and Bennett JJ, Logan J agreeing).

88    The position in the present case is different from that considered by SC Derrington J in Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179 at [32], where the relevant issue was not raised by the applicant in his statement of facts, issues and contentions but arose from the oral and written evidence before the Tribunal. Here, the applicant expressly disavowed any reliance on evidence from JH in her capacity as a victim of his criminal offending. The Tribunal was aware of the statement from JH and had regard to the impact on her and her family members elsewhere in its reasons for decision. Such a situation is more comparable to Knight v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 127 at [55]-[65], where the Full Court (Allsop CJ, Collier and Yates JJ) was satisfied that the Tribunal had “considered the applicant’s case in the way in which that case was advanced and presented to it”.

89    In some respects, the context of para 9.3 of the Direction suggests that information about the impact on victims of a non-citizen’s criminal offending will ordinarily be a matter that may tend to weigh against the revocation of the visa cancellation, hence the express recognition that the non-citizen must be afforded procedural fairness before the decision-maker considers any such information. It is nevertheless possible that a statement from a victim of the non-citizen’s criminal behaviour might be supportive of the non-citizen and his or her right to remain in Australia: compare PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235 at [8]-[9], [24]-[25], [54]-[59] (Kerr J). This consideration is not limited to impacts on victims solely in their capacity as victims, and can encompass impacts on a victim “as, for example, a spouse and mother who would be caused emotional distress or financial loss by the offender being removed from Australia”: Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516 at [142]-[143] (Logan, Rangiah and Goodman JJ).

90    A supportive statement from a victim of the non-citizen’s offending might have the effect of neutralising what could otherwise be a factor weighing against the non-citizen. It is more rare or unusual to contemplate that the impact on victims of the criminal offending should itself weigh positively in favour of revocation, such as where the victim expresses a strong interest in the applicant remaining in Australia. This is most likely to arise in a situation where the victim has a family or other close relationship with the applicant, particularly where that relationship is ongoing: compare CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416 at [9] (Rares, O’Callaghan and Jackson JJ). But that situation would often be addressed under Primary Consideration 3, which requires consideration of the strength, nature and duration of the non-citizen’s ties to Australia. For example, para 8.3 of the Direction requires decision-makers to consider the impact of the decision on the non-citizen’s immediate family members in Australia, and to give more weight to the non-citizen’s ties to his or her children, who are Australian citizens or permanent residents or who have a right to remain in Australia indefinitely.

91    In so far as such impacts weigh in favour of the non-citizen, it is preferable for them to be treated as a primary consideration which should generally be given greater weight than the other considerations (including impact on victims). It is generally unnecessary for the Tribunal to take the same matter into account “repetitiously” under two or more mandatory relevant considerations: see DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 1 at [39]-[43] (Collier, Markovic and Anastassiou JJ); Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26] (Perram J). The facts of DKN20 bear some similarities to the present case, in so far as the Tribunal had considered the impact of its decision on the appellant’s former partner, who was said to have been a victim of family violence, in the context of the primary consideration of the best interests of minor children (cf. PGDX at [40]-[50], where Kerr J sought to distinguish DKN20 on the basis that the former partner had not advanced any claim to be a victim of the relevant offending). Analogous arguments have also been unsuccessfully advanced in several other cases in which it has been held that the decision-maker had in fact taken into account the impact of the decision on the relevant persons: see e.g. Bale at [21]-[28] (Perram J); Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40] (Tracey J); and RZSN v Minister for Home Affairs [2019] FCA 1731 at [63]-[71] (Anderson J).

92    In the present case, as set out above, the Tribunal clearly took into account the impact of the decision on JH and her four children, and specifically referred to the statement from JH. Particularly in the light of the applicant’s submissions to the Tribunal, it was unnecessary to address those matters again under paras 9(1)(c) and 9.3 of the Direction. Further, on the Tribunal’s findings, the statement from JH was made in April 2022, was not corroborated by any direct evidence at the hearing, and did not appear to reflect the current state of the relationship between the applicant and JH or her children.

93    Accordingly, the Tribunal did not fail to consider the statement from JH or the impact of the decision on her and her family members. The Tribunal’s statement that there was no evidence on the impact of the decision on the victims of the applicant’s criminal offending, and its finding that this consideration was of neutral weight, did not involve a failure to comply with the Direction nor any constructive failure to exercise jurisdiction. Ground 3 is therefore not made out.

Ground four

94    The applicant submits that the Tribunal misunderstood the law and asked itself the wrong question by acting on an incorrect assumption that s 501CA(4)(b)(ii) of the Migration Act involved an exercise of discretion, as opposed to the formation of a state of satisfaction as to whether or not there was another reason for revocation of the original decision. The applicant relies on the Full Court’s decision in Au, and submits that the error was material to the Tribunal’s decision because it “did not engage in the deliberative process of evaluation required of it by s 501CA(4)(b)(ii), so as to arrive at a unique conclusion” but rather “engaged in that exercise with some latitude as to the decision to be made”.

95    Similar arguments have been advanced in a number of cases since the Full Court’s decision in Au. I discussed the decision in Au and subsequent authorities in Belmont v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 667 at [99]-[107]. As I there observed, the issue is whether the Tribunal correctly understood its task on review of the delegate’s decision under s 501CA(4) and asked itself the correct statutory question. This issue is not resolved simply by pointing to or counting the occasions on which the Tribunal used the word “discretion” to describe its task. Depending on the context of such references, it is not necessarily inapt to characterise the evaluative exercise required in making a decision under s 501CA(4)(b)(ii) and applying the Direction as attracting the concept of an exercise of discretion.

96    The error in Au arose from the Tribunal’s complete failure to pose the statutory question whether there was “another reason” to revoke the original decision, instead referring to whether the cancellation decision should be revoked as a matter of discretion. The decision in Au has been distinguished in many subsequent cases in which the Tribunal has correctly identified the statutory test under s 501CA(4)(b)(ii) and made a finding in such terms, notwithstanding that it has also referred to the exercise of a discretion in that context: see Belmont at [106]-[107].

97    In the present case, the catchwords set out in the Reasons referred to “whether the discretion to revoke the visa cancelation under section 501CA(4) should be exercised”, and the Tribunal referred to the exercise of a discretion at paras [207] and [305] of the Reasons. However, the Tribunal correctly posed the issue before it in terms of the statutory test under s 501CA(4)(b)(ii) at paras [3] and [206], and in the heading immediately above the reference to “this discretion” in para [207]. In the penultimate sentence of the Reasons at [305], immediately after stating that “the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa”, the Tribunal expressly found “that there is not ‘another reason’ pursuant to s 501CA(4)(b)(ii) to revoke the original decision”.

98    In these circumstances, in my view, it is clear that the Tribunal was cognisant of the statutory test required to be addressed under s 501CA(4)(b)(ii), and that it asked itself the correct question and made a finding on the subjective jurisdictional facts contained in s 501CA(4)(b). The references to the exercise of “discretion” in connection with the evaluative exercise performed by the Tribunal in applying the Direction do not reveal a misunderstanding of the law or any other legal error.

99    I note that, as the Tribunal was not satisfied that there was another reason to revoke the original decision for the purposes of s 501CA(4)(b)(ii), the question whether there is any residual discretion not to revoke the cancellation of a visa despite satisfying s 501CA(4)(b)(ii) does not arise on the facts of the present case.

100    Accordingly, I reject Ground 4 of the amended application.

Ground five

101    The applicant alleges that the Tribunal erred in law by “double counting” the applicant’s criminal offending when assessing the weight to be given to Primary Consideration 5 (the expectations of the Australian community).

102    The applicant points in particular to para [271] of the Reasons, in which the Tribunal stated that, in assessing the weight attributable to Primary Consideration 5, it was necessary to have regard to:

(a)    the Applicant’s criminal record (set out in Annexure B [to the Reasons]); and

(b)    [t]he other matters set out in detail above, in particular family violence, drug offences, firearms offences, ignoring repeated warnings from the Respondent and repeated breaches of various Court Orders.

103    This reasoning is said to reveal that the Tribunal counted the applicant’s criminal offending twice: first, in so far as it formed part of his criminal record that was set out in Annexure B to the Reasons; and second, as an aspect of the family violence, drug offences, firearms offences, ignoring repeated warnings from the Minister and repeated breaches of various Court Orders. The applicant submits that the second category encompasses offences which “had already been taken into account at para 271(a)” and that, but for such “double counting” of that criminal offending, there is a realistic possibility that the tribunal might have given less weight to the expectations of the Australian community. The applicant places reliance on the decision in Jama v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 410.

104    The situation addressed in Jama was slightly different from the present case. The appellant argued that the Tribunal had double counted the weight given to the seriousness of his offending, by first using it to discount the weight given to the strength, nature and duration of his ties to Australia (which was one of the “other considerations” under the then applicable Ministerial direction), and then also using it as a factor that outweighed the factors in favour of revocation (including the strength, nature and duration of ties to Australia): Jama at [17] (Markovic, SC Derrington and Feutrill JJ). The Full Court accepted that argument, concluding that “[t]he Tribunal was not entitled to double count its assessment of the seriousness of Mr Jama’s offending both when attributing weight to that specific consideration and again when weighing all considerations, both primary and other, in the final assessment”: Jama at [32]-[33].

105    In the present case, however, the applicant seeks to argue that the Tribunal “double counted” his criminal offending within its consideration of the weight to be accorded to the expectations of the Australian community under Primary Consideration 5. The Minister submits that this is not a fair reading of the Reasons at [271], and that the applicant has not pointed to any substantive aspect of the Tribunal’s reasoning under Primary Consideration 5 which suggests that it counted the applicant’s offending twice.

106    In written supplementary submissions, the Minister relied on the High Court’s decision in Ismail as reinforcing the submission that the Court should not lightly conclude that the Tribunal double counted the applicant’s criminal history when assessing Primary Consideration 5. The High Court there rejected a contention advanced by the plaintiff that Direction 90 did not permit the delegate to give weight to family violence under para 8.2 (which dealt with Primary Consideration 2, being family violence committed by the non-citizen) and also under paras 8.1 and 8.4 (which dealt respectively with Primary Consideration 1, being protection of the Australian community, and Primary Consideration 4, being the expectations of the Australian community). The Court observed (at [37]) that “the potential relevance of the commission of family violence is not logically or reasonably confined either to the protection of the Australian community (under para 8.1) or the expectations of the Australian community (under para 8.4)”. The Court stated that “the fact that the acts of family violence considered under each of the paragraphs are the same does not mean that the delegate's decision is irrational, illogical, or legally unreasonable because the delegate has engaged in ‘repetitious weighing’ or ‘double counting’”, and described such shorthand phrases as apt to mislead in circumstances where the same facts may be relevant to multiple different considerations: Ismail at [42]. In that context, “[w]eighing the relevance or significance of the same facts by reference to those different considerations … is doing no more than the direction, in terms, requires”: Ismail at [42]. It was therefore permissible for the delegate to weigh the same circumstances in the different contexts and for the different purposes that Direction 90 required in relation to each of the specified considerations, and “[t]here was no irrational, illogical, or legally unreasonable weighing of the same factor in the same context and for the same purpose twice”: Ismail at [43].

107    As the Court made clear in Ismail at [44], an inference will not readily be drawn that the Tribunal has impermissibly “double counted” the same facts in the weighing of relevant considerations under the Direction:

Although the resolution of each case in which an argument to this effect is put will depend on the terms of the applicable direction and the specific reasons of the delegate, care would also be required before an inference was drawn that a decision-maker had given weight to the same factor in the same context and for the same purpose twice under Direction 90 with the result that the decision is irrational, illogical, or legally unreasonable. Considerations which overlap (such as the consideration of the same acts of family violence in the different contexts of the protection of the Australian community, the views or policies of the Australian Government, and the expectations of the Australian community), by definition, are not wholly coextensive with each other. Weighing the relevance of the same acts of family violence in each different (albeit overlapping) context is not “repetitious weighing” or “double counting”, and it would be wrong to conceptualise such a process of reasoning as irrational, illogical, or legally unreasonable.

108    As noted above, the applicant in the present case does not contend that there was a “double counting” of his criminal offending under multiple different primary considerations, but rather that the Tribunal counted his offending twice when assessing the weight to be given to Primary Consideration 5 (the expectations of the Australian community). On one view, this might arguably amount to an allegation that the Tribunal irrationally gave weight to “the same factor in the same context and for the same purpose twice”. Nevertheless, it remains necessary to construe the Tribunal’s reasons fairly and as a whole, and not to do so “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

109    I do not consider that, on a fair reading of para [271] of the Reasons, the Tribunal was saying that the applicant’s criminal record and the “other matters” referred to should be regarded separately and cumulatively in assessing the weight attributable to Primary Consideration 5 against revocation of the cancellation decision. It can be accepted that there was some overlap between the applicant’s criminal record set out in Annexure B and the matters referred to in subparagraph (b), which included drug offences and firearms offences as well as family violence and repeated breaches of court orders. However, the matters were not co-extensive – the applicant’s criminal record encompassed offences that did not fall within the matters set out in subparagraph (b), and the matters set out in subparagraph (b) included conduct that was not necessarily criminal (such as ignoring repeated warnings from the Minister about the potential visa cancellation). Further, the matters referred to in subparagraph (b) highlighted aspects of the applicant’s criminal offending that were regarded as particularly relevant to the expectations of the Australian community, such as family violence (which is specifically referred to in para 8.5(2)(a) of the Direction) and drug offences. It was not irrational or illogical for the Tribunal to have regard to all of these matters when assessing the weight to be accorded to Primary Consideration 5. To the extent that there was an overlap between the applicant’s criminal record and the matters referred to in subparagraph (b), there is no suggestion that the Tribunal overlooked that overlap so as to engage in a “repetitious weighing” or “double counting” of any matters adverse to the applicant.

110    It follows that the applicant has not demonstrated that the Tribunal’s decision is irrational, illogical or legally unreasonable, and Ground 5 is not established.

Conclusion

111    For the reasons set out above, none of the grounds of review are established, and the amended application must be dismissed with costs.

Associate:

Dated:    7 August 2024