Federal Court of Australia

Siale v Minister for Immigration and Citizenship [2025] FCA 608

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.    The applicant’s amended application for judicial review filed on 12 May 2025 be granted.

3.    A writ of certiorari issue to the second respondent quashing its decision made on 27 August 2024.

4.    The matter be remitted to the second respondent, differently constituted, for determination according to law.

5.    The first respondent pay the applicant’s costs of the application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

INTRODUCTION

1    By an amended application filed on 12 May 2025, the applicant seeks judicial review of a decision of the former Administrative Appeals Tribunal made on 27 August 2024, which affirmed a decision by a delegate of the Minister not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

2    The amended application raises a single ground of review: that the Tribunal breached a statutory condition governing the making of its decision, namely compliance with s 499(2A) of the Migration Act, by failing to comply with Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA made by the Minister on 7 June 2024 (Direction 110). The Tribunal’s non-compliance with Direction 110 is said to have occurred in three respects:

1.    First, the Tribunal failed to comply with paragraph 8.1 in that it misapplied (or misconstrued) the requirement to consider the nature and seriousness of the applicant’s conduct to date.

2.    Secondly, the Tribunal failed to comply with paragraph 8.2 in that it misapplied (or misconstrued) the requirement to consider the seriousness of the family violence found to have been engaged in by the applicant.

3.    Thirdly, the Tribunal failed to comply with paragraph 8.3 in that it did not have regard to the strength, duration and nature of any family or social links with eight children who are Australian citizens.

3    For the reasons that follow, the decision of the Tribunal must be quashed and the applicant’s application for revocation of the mandatory cancellation of his visa must be remitted to the Tribunal for determination according to law.

BACKGROUND

4    The applicant is a citizen of New Zealand, where he was born in December 1997. He first arrived in Australia in March 1999 when he was 15 months old. The applicant has an extensive criminal history, having first been convicted of an offence as an adult in December 2019 aged 21. In the two-year period between 28 August 2019 and 29 August 2021, the applicant committed a total of 41 offences. He was most recently sentenced on 19 October 2023 in respect of the latest of those offences.

5    Most relevantly for the purposes of this application, on 11 June 2021, the applicant pleaded guilty to two counts of unlawful use of a motor vehicle and was sentenced to 15 months’ imprisonment for each count, such sentences to be served concurrently. He also at that time pleaded guilty to various other offences, including unlawful possession of a firearm, possessing explosives, six counts of possessing dangerous drugs, and three counts of contraventions of a domestic violence order (DVO), and was sentenced to concurrent terms of imprisonment in respect of those offences.

6    Given the applicant’s being sentenced to a term of imprisonment exceeding 12 months, on 28 September 2021 he was notified of the mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act (mandatory cancellation decision). On 1 October 2021, the applicant made representations seeking the revocation of that decision.

7    On 3 June 2024, a delegate of the Minister decided not to revoke the mandatory cancellation decision, pursuant to s 501CA(4) of the Migration Act (delegate’s decision). The applicant applied to the Tribunal seeking review of that decision.

8    The Tribunal affirmed the delegate's decision on 27 August 2024, with written reasons published on 12 September 2024: Siale and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3283 (Reasons). It is the Tribunal’s decision to affirm the decision then under review which is the subject of the present application.

RELEVANT PRINCIPLES

The legislative scheme

9    Section 501(3A) of the Migration Act provides that the Minister must cancel a visa if satisfied, relevantly, that the visa holder does not pass the “character test” because of the operation of s 501(6)(a) (i.e. if the person has a “substantial criminal record” as defined in s 501(7)(c), which arises where the person has been sentenced to a term of imprisonment of 12 months or more) and is serving a sentence of imprisonment on a full-time basis for an offence against a law of a State.

10    The Minister has power to revoke the mandatory cancellation decision under s 501CA(4) if satisfied either that the person passes the character test or that there is another reason justifying revocation.

11    Section 499(1) of the Migration Act allows the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. At the time of the Tribunal’s decision, the relevant direction of the Minister for the making of decisions under s 501CA(4) was Direction 110, which remains the most current iteration of a direction made under s 499.

12    Direction 110 commences with the Preamble, which sets out the objectives of the Direction. Relevantly, paragraph 5.1(4) provides:

The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under s 499.

13    As the High Court held in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 152 at [33], the obligation in s 499(2A) extends to the Tribunal in the course of a review.

14    Paragraph 5.2 of Direction 110 is headed “Principles”. It provides, relevantly:

The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

15    Part 2 of the Direction guides a decision-maker in making a decision. Paragraph 6 provides:

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

16    Paragraph 7(2) provides that “primary considerations” (i.e. those identified in section 8) should generally be given greater weight than the “other considerations” enumerated in section 9.

17    The primary considerations are specified in section 8 in the following terms:

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

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

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

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

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

(5)    expectations of the Australian community.

18    The applicant challenges the Tribunal’s evaluation of his circumstances in relation to the first three primary considerations. I set out below the relevant parts of paragraphs 8.1, 8.2 and 8.3 of the Direction, the (mis)application of which form the substance of the applicant’s complaint.

Jurisdictional error

19    The principles applicable to jurisdictional error arising from an alleged breach of a statutory condition governing the conferral of decision-making authority are well-settled and were recently summarised by the High Court in LPDT at [2]-[16]. It is uncontroversial that an applicant must establish not only that an error has occurred, but also that the error was material.

20    In determining whether an error meets the test of materiality, the question is whether the decision that was made could, not would, realistically have been different had there not been error. As it was put by their Honours in LPDT at [16]:

… unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

was THE TRIBUNAL’S DECISION affected by jurisdictional error?

First particular: Paragraph 8.1 of Direction 110

21    In articulating the Australian Government’s concern for the protection of the Australian community, decision-makers are required to 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 (Direction 110 at paragraph 8.1(2)). When considering the first factor, decision-makers are required to have regard to the fact that certain conduct is viewed by the Australian Government, and the community, as being either “serious” or “very serious”.

22    Paragraph 8.1.1 of the Direction provides, relevantly:

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

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

i.    violent and/or sexual crimes;

ii.    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;

iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

…

ii.    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

…

c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)     the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;

e)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

f)    the cumulative effect of repeated offending;

…

(Emphasis added.)

23    The Tribunal concluded (Reasons at [37]) that “the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’. I so find.” The applicant contended that, in reaching this conclusion, the Tribunal did not assess the seriousness of the conduct for itself because it misapplied paragraph 8.1 in two ways: first, by reasoning that where paragraph 8.1.1(1)(b) was engaged, it was required to regard the applicant’s past offending as serious; and secondly, by considering the nature and seriousness of the applicant’s past offending by reference to the types of offences committed, rather than the offending conduct.

24    As to the first contention, the applicant submitted that the Tribunal erred in considering that paragraph 8.1.1(1)(b) mandated a finding that the applicant’s conduct in obstructing police was “serious”. The applicant pointed to the Tribunal’s identification of the relevant criminal offending as including two offences of obstructing a police officer on 3 and 4 December 2019, for which the applicant was convicted by the Beenleigh Magistrates Court on 16 January 2020, albeit with no conviction recorded. The Tribunal then said (Reasons at [25]):

There is little or nothing to cavil with the proposition (and finding) that the Applicant’s conduct falls squarely within the auspices of paragraph 8.1.1(1)(b)(ii) of the Direction as crimes committed against government representatives or officials (i.e. the police) in the performance of their duties. This conduct thus grounds a finding that the nature of this Applicant’s conduct has been, at the very least, of a serious nature. I so find.

(Emphasis in original.)

25    The applicant characterised this error as the same as that identified by the Full Court in BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14; 307 FCR 150, which considered the requirements of paragraph 8.1 of Direction 99, the predecessor to Direction 110, which was in substantially the same terms. In BNY23, the Full Court held that the Tribunal had misconstrued paragraph 8.1.1(1)(a) in excluding from its consideration the appellant’s submission concerning the lack of premeditation and targeting of the women against whom he had offended and finding that the appellant’s conduct involved:

repeatedly committing violent crimes and crimes of a violent nature against women. Accordingly, my finding is that the [appellant’s] offending engages sub-paragraph 8.1.1(1)(a)(i) and is property [sic] characterised as “very serious”.

26    In that decision, Rangiah and Rofe JJ in the majority distilled the following principles:

(a)    Paragraph 8.1 as a whole is concerned with the primary consideration of the protection of the Australian community from criminal or other serious conduct. In that context, the requirement for the decision-maker to consider the factors in paragraphs 8.1(2), 8.1.1(1) and 8.1.2 is directed towards an assessment of the impact of those factors on the protection of the Australian community from criminal or other serious conduct by the non-citizen: [95].

(b)    The phrase “nature and seriousness” should be understood as a composite phrase, because the nature of criminal offending may affect its seriousness and vice versa: [96].

(c)    The “risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct” described in paragraphs 8.1(2) and 8.1.1(2) must be considered in light of the decision-maker’s assessment of the nature and seriousness of the non-citizen’s conduct to date under paragraph 8.1.1(1). That is so because the “nature and seriousness of past offending will plainly be relevant to assessment of the harm that could result from further offending by the non-citizen in the future”: [97].

(d)    Once a Tribunal determines that some of an applicant’s crimes are in the categories described in paragraph 8.1.1(1)(a), it is required to have regard to the fact that those types of crimes “are viewed very seriously by the Australian Government and the Australian community”: [102].

(e)    However, the view of the Australian Government and the Australian community is only one of the factors bearing upon an assessment of the nature and seriousness of the non-citizen’s conduct. A Tribunal is required to otherwise consider any submissions put forward by an applicant in its application of paragraphs 8.1.1(1) and 8.1.2: [103].

(f)    Paragraph 8.1.1(1)(a) does not require the Tribunal to characterise offending as “very serious”; it only requires that decision-makers have regard to, relevantly, the view of the Australian Government and the Australian community that violent crimes and crimes of a violent nature against women are “very serious”. The Tribunal is not bound by that view but is instead required to assess for itself the nature and seriousness of the non-citizen’s criminal offending and the weight that should be attributed to that factor: [107].

27    The Minister contended that in the present case, the Tribunal has done no more than observe that the offending came within the “auspices” of paragraph 8.1.1(1)(b), without making the error disclosed in BNY23 of assuming that the sub-paragraph compelled a finding of “serious” conduct. That submission cannot be accepted. Although slightly different words have been used by the Tribunal, the substance of the relevant finding is identical with that impugned in BNY23. There, the Tribunal reasoned that the appellant’s conduct involved repeatedly committing violent crimes and crimes of a violent nature against women, which engaged sub-paragraph 8.1.1(1)(a), and “accordingly” was properly characterised as “very serious”. In the present case, the Tribunal reasoned that the applicant’s conduct falls squarely within paragraph 8.1.1(1)(b)(ii) as crimes committed against the police in the performance of their duties, and “thus” grounds a finding that the conduct has been, at the very least, of a “serious” nature.

28    It is tolerably clear that the Tribunal has fallen into error in this respect.

29    As to the second contention, the applicant argued that, although the Tribunal referred to the “nature of offences committed” (Reasons at [20]), that assessment was “limited to identifying the type of offence and number of times committed by the applicant without reference to the offending conduct”. In short, the gravamen of this complaint is that the Reasons rely on the fact of the offences themselves as the basis for the Tribunal’s conclusions on seriousness, and not any assessment of the underlying conduct which constituted the offences.

30    The Tribunal said (Reasons at [20]):

… the totality of his offending that can be taken into account for the instant determination looks like this:

•    total offences committed (as an adult): 41;

•    period of offending (in terms of sentencing episodes as an adult): 5 December 2019 until 19 October 2023;

•    period of offending (in terms of dates when offences were committed as an adult): 28 August 2019 until 29 August 2021;

•    total sentencing episodes: five commencing on 5 December 2019 until 19 October 2023;

•    nature of offences committed (including the number of those offences in brackets):

•    failure to appear in breach of bail (x8);

•    unlawful possession of restricted drugs (x10);

•    unlawful use of motor vehicle (x4);

•    obstruct police officer (x2);    

•    contravention of domestic violence order (‘DVO’) (x5);

•    possession of drug consumption paraphernalia (x3);

•    possess property suspected of having being [sic] used in connection with the commission of a drug offence (x2);

•    possessing/acquiring restricted items (weapon offence)(x1);

•    fail to properly dispose / take reasonable care and precautions in respect of syringe or needle (x2);

•    authority required to possess explosives (x1);

•    unlawful possession of weapons (x1); and

•    receiving tainted property (x1);

•    sentencing modalities imposed (at each relevant sentencing episode):

•    5/12/19: no conviction recorded and fine imposed;

•    16/1/20: no conviction recorded: not further punished;

•    16/1/20: no conviction recorded: period of probation imposed;

•    11/6/21: conviction recorded: not further punished;

•    11/6/21: conviction recorded: custodial term imposed: 15 months;

•    11/6/21: conviction recorded: custodial term imposed: three months;

•    11/6/21: conviction recorded: custodial term imposed: 12 months;

•    11/6/21: conviction recorded: custodial term imposed: six months;

•    12/10/23: conviction recorded: not further punished and pre-sentence custody taken into account but not declared as time already served under this sentence; and

•    19/10/23: on all charges: conviction recorded and not further punished;

•    sentencing summary:

•    total fines: $2,500;

•    total probationary time imposed: 18 months; and

•    total head custodial time imposed: 36 months or three years.

31    I will not set out the applicant’s traffic history, which was rightly described by the Tribunal as “appalling” (Reasons at [21]).

32    It should readily be accepted that the fact of a person’s conviction of an offence is probative evidence that the person has engaged in the underlying conduct necessary to satisfy the elements of the offence. In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; 106 FCR 313, Branson J observed (albeit in a different context) at [43] that a conviction and sentence is “strong prima facie evidence of the facts upon which they are necessarily based”. That observation was cited with approval by Colvin J in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; 273 FCR 121, with his Honour at [190] agreeing that “the compelling nature of such findings gives them a quality that will be difficult to contradict”. Accordingly, consideration of the types of offences of which a person has been convicted will necessarily be an important evidentiary starting point in the assessment of the nature and seriousness of said offending.

33    I am also conscious of the Full Court’s decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593, which cautioned that (at [46]-[47]):

[46]     It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

[47]     The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

    (Emphasis added.)

34    When considering paragraph 8.1.1(1), the Full Court made clear in BNY23 that the Tribunal must assess for itself the “nature and seriousness” of a non-citizen’s criminal offending. That requires more than mere identification of the offence. By way of example, the Full Court observed in relation to crimes of a violent nature against women that “such crimes may range from common assault to murder and [their] seriousness and nature may also vary widely” (at [107]). In the present case, it is tolerably clear that the Tribunal considered the nature and seriousness of the two domestic violence incidents (Reasons at [22], [57], [59], [60]) and a firearm offence (Reasons at [30]). The Tribunal did not, however, make any findings as to the character of the applicant’s obstruction of police before concluding that the conduct underpinning those two offences had been “at the very least, of a serious nature” (Reasons at [25]). No mention was made of the nature of the obstruction (the applicant running away from police and, in one case, surrendering after 150 metres), nor of the fact that no conviction was recorded. Just as the nature of offences against women will vary widely, so too will the nature of offences against “government officials” such as the police.

35    The applicant submitted further that the Tribunal’s failure to assess the nature and seriousness of the offending conduct, as required by paragraph 8.1(2)(a), infected the Tribunal’s conclusion in relation to paragraph 8.1.1(1)(f), at [35], that “These cumulative effects of the Applicant’s repeated offending cause this paragraph 8.1.1(1)(f) to strongly militate in favour of a finding that the totality of the Applicant’s offending should now be found to be ‘very serious’.” The “cumulative effects” to which the Tribunal referred were fivefold. The applicant takes no issue with the first, being his failure to respect the law, including by repeatedly breaching domestic violence orders, breaching bail terms and committing various traffic violations.

36    The applicant does, however, challenge the following four findings on the basis that there was no evidence to support such findings. The Tribunal found, at [33], that the second matter which supported the finding as to the actual cumulative effect of his repeated pattern of offending was that his domestically violent conduct had “exposed at least two former partners to a not insignificant risk of physical injury.” While there was evidence before the Tribunal as to actual violence perpetrated against the first partner, there was no evidence as to how the second partner had been exposed to a “not insignificant risk of physical violence”. The unchallenged evidence before the Tribunal was that the applicant and his second partner had “an argument and then the police came … but there was no physical contact.” The third matter was the applicant’s “some 13 convictions in the realm of drug offending” and the fourth his convictions for property offending. As to the latter, the Tribunal found, albeit without any analysis of the substance of the property offending, that “This conduct has surely resulted in demonstrable material loss to the victims” of the offending (Reasons at [34]). Together, the drug offences and the domestic violence conduct appear to form the basis for the Tribunal’s fifth finding, being that “his conduct may have quite probably consumed the community’s healthcare resources” and that “entirely innocent people … may have suffered an injury as a result of his failure to properly dispose of any needle and syringe he may have utilised as part of his own drug use” (Reasons at [34]).

37    Absent consideration of the nature and seriousness of the applicant’s conduct, which may well have exposed consequences of the type about which the Tribunal has speculated, there was no basis for the ultimate finding. In failing to consider for itself those matters, the Tribunal misapplied paragraph 8.1 of Direction 110.

38    The Minister conceded during the hearing that if error was identified with respect to the application of paragraph 8.1, the error would be material.

Second particular: Paragraph 8.2 of Direction 110

39    The second primary consideration under Direction 110 is contained in paragraph 8.2, being whether past conduct engaged in by the non-citizen constituted “family violence”.

40    Paragraph 8.2 of the Direction provides:

(1)     The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2)     This consideration is relevant in circumstances where:

(a)    a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

(b)    there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3)     In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:

(a)    the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

(b)    the cumulative effect of repeated acts of family violence;

(c)    rehabilitation achieved at time of decision since the person's last known act of family violence, including:

i.     the extent to which the person accepts responsibility for their family violence related conduct;

ii.     the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

iii.     efforts to address factors which contributed to their conduct;

and

(d)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.

41    “Family violence” is defined in paragraph 4(1) of the Direction to mean:

violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:

a)    an assault; or

b)    a sexual assault or other sexually abusive behaviour; or

c)    stalking; or

d)    repeated derogatory taunts; or

e)    intentionally damaging or destroying property; or

f)    intentionally causing death or injury to an animal; or

g)    unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

h)    unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

i)    preventing the family member from making or keeping connections with his or her family, friends or culture; or

j)    unlawfully depriving the family member, or any member of the family member's family, or [sic] his or her liberty.

(Emphasis added.)

42    The Tribunal found, relevantly, that the applicant’s conduct perpetrated on 31 October 2019, which gave rise to the making of a DVO against him, plus at least one instance of conduct in breach of the DVO which occurred on 3 December 2019, constituted family violence (Reasons at [65], [67]). While the applicant committed a further four breaches of the DVO, the Tribunal regarded those as “technical” breaches, in the sense that the applicant breached a term of the DVO which prohibited him from being within 100 metres of where one of his ex-partners lives, works or frequents (Reasons at [69]).

43    Pursuant to paragraph 8.2(3)(a) of the Direction, the Tribunal was required to consider “the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness”. The Tribunal was not satisfied that the family violence conduct committed by the applicant evidenced a trend of increasing seriousness in this case (Reasons at [69]).

44    The applicant contended that, in assessing the “frequency” component of paragraph 8.2(3)(a), the Tribunal erred by taking into account the “technical breaches” of the DVO despite that conduct not meeting the definition of “family violence” under paragraph 4(1). The applicant’s submission rests on the premise that frequency for this purpose must be assessed only by reference to conduct which is found to be family violence, and not a non-citizen’s “broader offending”. In support of that premise, the applicant pointed to two features in the structure of Direction 110:

(a)    First, that consideration of the non-citizen’s broader past conduct is the focus of primary consideration 1, whereas primary consideration 2 is specifically directed to the issue of family violence conduct committed by the non-citizen.

(b)    Secondly, that paragraph 8.2(3) is directed to a consideration of “the seriousness of the family violence engaged in by the non-citizen” (emphasis added).

45    The Minister submitted that there is no reason to read the Direction so narrowly, and particularly that there is no reason to limit the consideration only to those acts of family violence included by way of example in paragraph 4(1). In support of that submission, the Minister pointed to other features of paragraph 8.2(3) which were said to demonstrate that a decision-maker may assess seriousness by reference to matters which are separate from, but related to, the family violence itself. These include the requirement under paragraph 8.2(3)(c) to consider rehabilitation undertaken by the non-citizen to address their previous family violence conduct, as well as paragraph 8.2(3)(d) and its reference to “re-offending” which follows a “warning about the consequences of further acts of family violence”. The result, the Minister says, is that the Tribunal was entitled to have regard to all breaches of the DVO – which itself was designed to prevent the applicant from engaging in further acts of family violence – regardless of whether the conduct the subject of those breaches itself met the definition of “family violence” by reference to the examples in paragraph 4(1).

46    That submission must be accepted. I do not accept the applicant’s submission that non-violent breaches of the terms of a domestic violence order should be characterised as “broader conduct” falling for consideration under paragraph 8.1 of the Direction only. Plainly, those breaches can only be referable to the order itself, which is a product of previous family violence conduct committed by the non-citizen, and therefore may well be considered “threatening or other behaviour … that causes the family member to be fearful”. As such, the making of a domestic violence order, and breaches of it, may be evidence of the seriousness of the family violence engaged in by the non-citizen. In any event, as the Minister submitted, the applicant’s contention fails when one looks to the Reasons where, at [69], the Tribunal clearly delineated between the conduct which it described as the “technical breaches” of the DVO and the conduct which was “actual violence”, precisely as the applicant contends it was required to do.

47    The Tribunal was also required by paragraph 8.2(3)(d) of the Direction to consider whether “the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence”. The Tribunal found that the applicant had re-offended after being warned in this case. In a DVO made against him on 16 December 2019, the applicant was told the consequences of any contravention of the order – the Tribunal found (Reasons at [73]-[74]) that this amounted to a “warning” of the kind contemplated by paragraph 8.2(3)(d). Having been so warned, the applicant “proceeded to breach the subject DVO on at least three occasions”, namely on 29 February 2020, 21 April 2020 and 23 April 2020, such that he had “re-offended (in the realm of domestic violence)” (Reasons at [74]).

48    The applicant contended that, much as for paragraph 8.2(3)(a), the Tribunal erred by taking into account those three “technical” breaches of the DVO which, properly understood, are not relevant to the consideration required by paragraph 8.2(3)(d). For the same reasons as those I have set out previously, I do not accept that position. I accept the Minister’s submission that, while there must of course be a relationship between the earlier warning and the subsequent re-offending, there is no reason to limit that concept to only family violence as conceptualised in the list which appears in paragraph 4(1). Breaches of a domestic violence order, whether actually violent or technical in nature, must be taken into account by a decision-maker when considering whether a non-citizen has “re-offended” despite a prior warning concerning family violence. That is particularly so given the terms of the warning issued to the applicant here, which extended to contravening “any conditions” of the order. The result is that the Tribunal properly had regard to the applicant’s breaches of the DVO in assessing paragraph 8.2(3)(d) of the Direction.

49    No error is disclosed by the second particular. I am satisfied that the Tribunal properly understood and applied paragraph 8.2 of Direction 110 in this case.

Third particular: Paragraph 8.3 of Direction 110

50    The third primary consideration under Direction 110 is contained in paragraph 8.3, being the strength, nature and duration of the non-citizen’s ties to Australia.

51    Paragraph 8.3 of the Direction provides:

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

(2)     Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

(a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

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

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

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

52    Paragraph 8.3 directs a decision-maker’s consideration of a non-citizen’s ties to Australia in two ways. First, it directs attention to the impact of a non-citizen’s removal on immediate family members who are Australian or who have an indefinite right to remain in Australia. Secondly, it directs attention to the impact on the non-citizen of the loss of any other ties to the Australian community. This two-pronged interpretation is evident from the text and structure of paragraph 8.3. Paragraph 8.3(1) refers specifically to “any impact of the decision on the non-citizen’s immediate family members.” By contrast, paragraph 8.3(2) directs a decision-maker to consider the strength of the ties that the non-citizen has to the Australian community, having particular regard to the length of time the non-citizen has resided in Australia, including whether he or she arrived as a young child, and considering when the non-citizen’s offending began.

53    The Tribunal found in respect of paragraph 8.3(1) that the applicant’s ties to five of his immediate family members in Australia (his father, three adult sisters and an adult brother) were “both palpable and strong” and that those family members “would be adversely impacted in the event of the Applicant’s removal to New Zealand” (Reasons at [80]). The applicant’s relationship with his minor siblings was not considered at this stage of the analysis, despite the Tribunal’s finding that his two minor half-brothers were members of the applicant’s immediate family (Reasons at [79]).

54    The crux of the applicant’s contention with respect to the Tribunal’s assessment of this consideration is that it did not have regard to the strength, nature and duration of all of the applicant’s ties with the Australian community as required by paragraph 8.3(2), because it “deferred” (Reasons at [82]) consideration of his links with eight children (four nephews, a niece, and three children of the applicant’s friends) to its assessment of primary consideration 4, being “the best interests of minor children in Australia”. As is apparent from the Reasons, the Tribunal also deferred its consideration as required by paragraph 8.3(1) of the impact on two of the Applicant’s immediate family members.

55    The Minister submitted that this complaint misunderstands the Tribunal’s decision, and that it is plain that the Tribunal did not disregard the applicant’s links with those children for the purpose of assessing his ties to the Australian community as a whole. Rather, the Minister says, on a fair reading of the Reasons the Tribunal accounted for the factual overlap between the two primary considerations in this case by “deferring” its discussion of the evidence relevant to those children until the “best interests of minor children” consideration, which also required consideration of the applicant’s two minor siblings.

56    It is necessary to examine how the Tribunal dealt with the impact on the applicant’s minor siblings of the decision to remove the applicant when it came to addressing primary consideration 4. In so doing, the Tribunal considered the best interests of the applicant’s two step-children separately from the best interests of what it described as “the other relevant group of children,” which together comprised the applicant’s minor siblings, his minor nephews and niece, and the minor children of the applicant’s friends (Reasons at [92]).

57    As to the best interests of his minor siblings, the Tribunal said (Reasons at [111]):

In his most recent statement, the Applicant makes reference to his minor siblings and it seems clear that if he were to return to the community he would live in relatively close proximity to many of them or that he would otherwise maintain some measure of contact and familiarity with them. He describes his relationship with his minor siblings as variously, ‘…a brilliant relationship…’, ‘…a good relationship with them...’, ‘…I am really close with my half-brothers…’ The Applicant says ‘When I was in the community, I tried to be a role model for my siblings…’ Towards the end of his most-recent statement he says ‘If I am deported, I think that it will have a huge impact on my younger siblings.’ The Applicant’s evidence, seems, to an extent, to be augmented by the evidence of his father who said the Applicant ‘…is a reliable man who always helps not only me but everyone around him. He has done this his whole life. He is especially admired by us for his efforts he has put in towards his siblings.’

(Citations omitted.)

58    The Tribunal made collective findings in relation to “the other relevant group of children”. It found that there was “a demonstrable durability in the relationship between the Applicant and these children … [which] militates in favour of allocation of a heavy level of weight to the Applicant” (Reasons at [115]). Further, it found that “the Applicant is likely to play some measure of a positive-and on occasions, parental-role in the lives of these children … [which] militates in favour of allocation of a heavy level of weight to the Applicant” (Reasons at [116]). The only finding specific to his minor siblings was that “it seems clear from the Applicant’s statement as quoted above [that] his more mature aged siblings would doubtlessly be impacted by his removal … [which] militates in favour of allocation of a heavy level of weight to the Applicant” (Reasons at [120]).

59    The Tribunal arrived at a “moderately heavy level of weight” to be allocated to the impact on “the other relevant minor children”, which included the Applicant’s minor siblings, should he be removed to New Zealand (Reasons at [122]).

60    Despite the Tribunal’s attempt to deal efficiently with the best interests of the 16 relevant children, it is apparent from its Reasons that the Tribunal omitted to consider the specific impact on the Applicant’s minor siblings, being his immediate family members, as it was required to under paragraph 8.3(1). The Tribunal did not distinguish between his siblings on the one hand, and his nephews, niece and children of friends on the other. This was an error.

61    Similarly, although the Tribunal carefully considered the factors in paragraph 8.4(4) in arriving at its conclusion that a moderately heavy level of weight should be allocated to the best interests of the other relevant minor children, including the applicant’s siblings, when considering the effect of the applicant’s permanent removal from Australia (Reasons at [122]), those factors are directed at assessing the issue from the child’s point of view. As has already been observed, paragraph 8.3(2) requires an assessment of the strength, duration and nature of any family or social links from the perspective of the non-citizen. The Tribunal did not undertake that task.

62    Had the Tribunal considered separately the impact of the applicant’s removal on his minor siblings, being immediate family members with a right to remain in Australia indefinitely, as required by paragraph 8.3(1), a different decision could realistically have resulted. Likewise: LPDT at [16]. Similarly, had the Tribunal considered the strength, nature and duration of the applicant’s ties with “the other relevant minor children”, as required by paragraph 8.3(2), a different decision could realistically have resulted.

DISPOSITION

63    For these reasons, the applicant has succeeded on two of his complaints as to the Tribunal’s failure to comply with s 499(2A) of the Migration Act by failing to properly apply Direction 110. Consequently, orders will be made quashing the decision of the Tribunal dated 27 August 2024 and remitting the matter to the Tribunal, differently constituted, for determination according to law.

64    The Minister must pay the applicant’s costs of this judicial review application, to be taxed if not agreed.

Associate:

Dated:    11 June 2025