Federal Court of Australia

Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 28 August 2024.

2.    A writ of mandamus issue directed to the Second Respondent that it determine the First Respondent’s Application for Review of a Decision dated 11 June 2024 according to law.

3.    The First Respondent pay the Applicant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

SHARIFF J

1.    INTRODUCTION

1    This is an application for judicial review brought by the Minister for Immigration and Multicultural Affairs (Minister) in respect of a decision of the former Administrative Appeals Tribunal (Tribunal). The second respondent, the Administrative Review Tribunal, is the successor to the Tribunal.

2    The background facts may be shortly stated. The first respondent (the visa applicant) is a national of Colombia who first arrived in Australia in June 2008 at the age of 27. Since then, the visa applicant has resided in Australia under several temporary visas.

3    On 9 May 2017, the visa applicant applied for a Subclass 186 Employer Nomination (Permanent) (Class EN) visa (the Visa Application). In the period that followed, and before his application was determined, the visa applicant engaged in several instances of interrelated criminal conduct. This included acts of a sexual nature towards a minor, being his then 17 year old stepdaughter. On 26 May 2019, the applicant was charged and remanded in custody. He was subsequently convicted of offences under ss 61KF(1)(a) (intentionally carry out a sexual act), 319 and 323(a) of the Crimes Act 1900 (NSW) (relating to attempts to pervert the course of justice). The latter offences were committed when the visa applicant was subject to bail conditions and an Apprehended Domestic Violence Order (ADVO) which precluded him from contacting his ex-wife. Despite the operation of that ADVO, the visa applicant contacted his ex-wife seeking to discourage her from providing a statement to the police and also to procure his stepdaughter not to give evidence. The visa applicant was sentenced in June 2021 to an aggregate term of four years of imprisonment. On 5 June 2024, a delegate of the Minister decided under s 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse to grant the Visa Application. This decision was made for reasons including that the visa applicant had been sentenced to a term of imprisonment longer than 12 months such that he had a “substantial criminal record” within the meaning of s 501(7)(c) the Act and therefore failed the character test by the operation of s 501(6)(a) of the Act.

4    On 11 June 2024, the visa applicant applied to the Tribunal under s 500(1)(b) of the Act for a review of the delegate’s decision. On 7 and 8 August 2024, the Tribunal conducted a review hearing and, on 28 August 2024, the Tribunal set aside the delegate’s decision to refuse the visa application: Peralta Montes and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3050 (the Tribunal’s Decision or T). It is this decision that is the subject of the Minister’s application for judicial review under s 476A of the Act.

5    By an originating application filed on 2 October 2024, the Minister challenges the Tribunal’s Decision on four grounds:

(a)    first, on the ground that the Tribunal misconstrued paragraph 8.2 of Ministerial Direction No 110 (Direction 110 or the Direction) as a consideration capable of weighing in favour of a visa applicant and thereby failing to comply with the statutory obligation in s 499(2A) of the Act (Ground 1);

(b)    second, on the ground that the Tribunal denied the Minister procedural fairness by failing to invite the Minister to address the Tribunal on its characterisation of paragraph 8.2 as described in Ground 1 (Ground 2);

(c)    third, on the ground that the Tribunal failed to exercise jurisdiction by misconstruing the statutory task under s 501(1) of the Act (Ground 3); and

(d)    fourth, on the ground that the Tribunal denied the Minister procedural fairness by failing to invite the Minister to address its characterisation of the visa applicant’s criminal offending as “serious” rather than “very serious” when considering the weight to be afforded to the primary consideration set out in paragraph 8.1.1 of Direction 110 (Ground 4).

6    For the reasons that follow, I am satisfied that Grounds 1 and 3 should be upheld, Ground 2 does not arise, and Ground 4 should be dismissed. The result is that a writ of certiorari should be issued quashing the Tribunal’s decision made on 28 August 2024 and a writ of mandamus should issue directed to the Administrative Review Tribunal requiring it to determine the visa applicant’s Application for Review of a Decision dated 11 June 2024 according to law.

2.    GROUNDS 1, 2 AND 3

7    As Grounds 1, 2 and 3 all relate to the Tribunal’s assessment of the same subject matter, it is convenient to address them together. Before doing so, it is necessary to identify the facts and issues that emerged before the Tribunal as they relate to Grounds 1, 2 and 3, and to identify the key aspects of the Tribunal’s process of reasoning in relation to those matters.

2.1    Overview

8    The Tribunal’s reasons were extensive, spanning 86 pages and 427 paragraphs in total.

9    The Tribunal commenced its reasons by addressing the general immigration history of the visa applicant before then turning to examine his criminal history. The Tribunal observed that prior to making the Visa Application, the visa applicant did not have any criminal history in Australia or Colombia: T [24]–[25]. In fact, prior to 26 May 2019, the visa applicant had not engaged in any alleged criminal conduct: T [25]. However, and as noted above, the Tribunal addressed the fact that the visa applicant was later convicted of offences arising from events that occurred on 26 May 2019.

10    The Tribunal outlined the facts of the visa applicant’s relevant offending at T [26]–[49]. In brief, on 26 May 2019, the visa applicant and his then wife hosted guests at their apartment. The evidence indicated that the visa applicant and his then wife, and their biological daughter, occupied one bedroom of the apartment, and the visa applicant’s 17 year old stepdaughter occupied a different bedroom. The evidence further indicated that on the night in question, the applicant’s stepdaughter and his biological daughter fell asleep in the bed in the bedroom usually occupied by the visa applicant and his then wife. After consuming substantial amounts of alcohol, in the early hours of the following morning, the visa applicant was found to have performed a sexual act towards his stepdaughter. The visa applicant claimed that it was a case of mistaken identity brought about by his state of intoxication, low-lighting conditions and by reason of the fact that his daughter and stepdaughter were entirely covered by bedlinen, but he was nevertheless convicted: T [44], [73], [100], [276]. The visa applicant was also convicted of offences of attempting to pervert the course of justice by seeking to dissuade his ex-wife from reporting the matter to Police and seeking that she procure his stepdaughter not to attend court to give evidence against him. The Tribunal observed that the visa applicant was charged, but not convicted, of another offence of intentionally sexually touching his stepdaughter and that this charge “was thrown out by the Court at trial”: T [31]–[32], [47].

11    The Tribunal then engaged in a detailed overview of the material before it, including the evidence and submissions received during the hearing before the Tribunal: T [63]–[270]. Next, the Tribunal turned its attention to the “character test” and observed that, by reason of having been sentenced to a term of imprisonment of more than 12 months, the visa applicant had a “substantial criminal record” by the operation of s 501(7)(c) and accordingly did not pass the character test by reason of s 501(6)(a) of the Act: T [271]. Upon reaching this conclusion, the Tribunal turned to address itself (at T [272]) as follows:

To revoke the refusal of the [visa applicant’s] visa under s 501(1) of the Act, the Tribunal must be satisfied that there is another reason, considering Direction No 110, to revoke the refusal.

12    Having identified its task in this way, the Tribunal then proceeded to consider the requirements of Direction 110: see T [274]–[427].

2.2    Approach to evaluating the considerations contained in Direction 110

13    In conducting its analysis of the primary and other considerations specified in Direction 110, the Tribunal adopted a two-step approach by:

(a)    first, considering the elements of each primary consideration contained in Direction 110 and evaluating whether they weighed for or against the “revocation” of the delegate’s decision; and

(b)    second, concluding whether or not the primary consideration, in sum, weighed in favour of the “revocation” of the delegate’s refusal to grant the Visa Application.

14    The Tribunal adopted this two-step approach in respect of each of the primary considerations contained in Direction 110: see eg T [336]–[337]. Taking the first primary consideration by way of example, after considering the matters specified in paragraph 8.1.1(1), the Tribunal expressed its conclusion (at T [313]) as follows:

The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh against the revocation of the refusal of the [visa applicant’s] visa.

15    The Tribunal expressed its conclusion in relation to the next element of paragraph 8.1 in a similar way (at T [336]):

The Tribunal finds that paragraph 8.1.2 of the Direction, particularly with respect to the seriousness of the [visa applicant’s] conduct in May 2019, weighs against the revocation of the refusal of the [visa applicant’s] visa…

16    Having considered each of the separate elements of the first primary consideration, the Tribunal expressed its ultimate conclusion about the weight to be attributed to that consideration (at T [337]) as follows:

Primary Consideration 1 weighs against the revocation of the refusal of the Applicant’s visa. The Tribunal notes that this consideration is not of itself determinative.

17    An examination of the balance of the Tribunal’s reasons reveals that the Tribunal generally continued to follow the same approach and – except in relation to paragraph 8.2 – used the same formula and language when expressing its conclusions. Specifically, in each respect, the Tribunal expressed a conclusion as to whether the relevant consideration either weighed for or against the “revocation of the refusal” of the visa applicant’s visa.

18    In dealing with paragraph 8.2, the Tribunal adopted a slightly different formulation. After considering each factor enumerated by sub-paragraphs 8.2(3)(a), (b) and (c), the Tribunal concluded as follows (at T [356]):

Considering the sub-paragraphs in their totality, the Tribunal finds that they weigh against the refusal of the [visa applicant’s] visa.

(Emphasis added.)

19    Despite using the word “refusal” here (and not the word “revocation”), in the next paragraph the Tribunal relevantly concluded (at T [357]):

The Tribunal finds that this consideration weighs in favour of the revocation of the refusal of the [visa applicant’s] visa.

(Emphasis added.)

20    Other than the one instance at T [356], the Tribunal otherwise expressed its conclusions about the weight to be attributed to each relevant consideration in terms of “revoking” the delegate’s refusal of the visa applicant’s visa: see T [313], [336]–[337], [356], [369]–[370], [402]–[403], [411], [422] and [425].

21    Likewise, the Tribunal’s ultimate conclusion was expressed in terms of “revoking” of the relevant visa rather than in terms of “refusing” the Visa Application. The Tribunal’s conclusion was relevantly set out as follows:

424    The Tribunal has had close regard to the totality of the evidence and those considerations referred to in the Direction.

425     The Tribunal finds in conclusion that the weight that should be apportioned to the primary and other considerations with respect to the revocation of the Applicant’s visa, outweigh those considerations with respect to the non-revocation of the Applicant’s visa.

426     The decision under review is accordingly set aside and in substitution the refusal of Mr Peralta Montes’s visa is revoked.

(Emphasis and additional emphasis added.)

2.3    The Tribunal’s assessment of Primary Consideration 2

22    The Tribunal’s evaluation of paragraph 8.2 of Direction 110 (Primary Consideration 2) is the subject of Grounds 1, 2 and 3: T [338]–[357].

23    Primary Consideration 2 deals with family violence committed by a visa applicant. The Tribunal commenced its consideration of Primary Consideration 2 by identifying that paragraph 4.1 defined “family violence” for the purpose of Direction 110 as being “violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes that family member to be fearful”: T [338]. The Tribunal then acknowledged that “Paragraph 8.2(1) informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia” and observed that this concern is proportionate to the seriousness of the family violence: T [339].

24    The Tribunal next turned to paragraph 8.2(3)(a), which deals with the frequency of the relevant conduct and any “trend of increasing seriousness”: T [340]. The Tribunal found that the visa applicant had committed an aggravated sexual act against his minor stepdaughter while she was in his care and control, which resulted in an “Apprehended Domestic Violence Order” and the imposition of a full-time custodial sentence, and also committed acts of family violence against his ex-wife afterwards by attempting to prevent her from providing assistance to the Police and by attempting to convince her to procure his stepdaughter not to give evidence: T [341]–[342].

25    The Tribunal then considered paragraph 8.2(3)(b), which deals with the “cumulative effect of repeated acts of family violence”: T [343]–[351]. The Tribunal observed that there had “only been one incident of domestic violence” (cf “family violence”) and, after canvassing certain evidence given by Mr Watson-Munro (a Consultant Psychologist) and the applicant’s ex-wife, the Tribunal concluded that there was “no evidence before it with respect to cumulative effects caused by repeated family violence”: T [351]. In particular, the Tribunal observed that Mr Watson-Munro had expressed the opinion that the visa applicant’s offending was influenced by alcohol and was “very much out of character”; that his stepdaughter had “moved on from the offending”, had “no contact with [the visa applicant]” and had “no intention of seeing [the visa applicant] in the future”; and that the visa applicant’s ex-wife had visited him in detention with his young daughter who misses him: T [344]–[347]. The Tribunal also observed that the visa applicant’s ex-wife had given evidence that she had never been subjected to domestic violence during her relationship with the visa applicant; that her and the visa applicant’s “dual focus” was the “welfare of their [biological] daughter”; that the visa applicant was remorseful; and that she and her biological daughter wanted the visa applicant to be returned to the Australian community: T [348]–[350].

26    The Tribunal then turned its attention to sub-paragraph 8.2(3)(c), which requires a decision-maker to consider any rehabilitation that has been achieved, including whether the person has accepted responsibility for their conduct, understands the impact of that conduct, and has made efforts to address any factors that contributed to engaging in the conduct: T [352]–[353]. The Tribunal referred to evidence which indicated that the visa applicant had attended various courses related to his offending, including those directed at strengthening him as a father and member of the community as well as those on the subjects of domestic violence, drug and alcohol abuse, child safety and positive parenting techniques: T [353]. The Tribunal also observed that the visa applicant was prepared to attend further community courses in the future and was seeing a counsellor on a fortnightly basis: T [353].

27    The Tribunal then addressed sub-paragraph 8.2(3)(d), which relates to the occurrence of any re-offending and likelihood of future offending: T [354]–[355]. The Tribunal observed that the visa applicant had not engaged in any further offending, though it was further observed that he had largely been incarcerated since the time of his offending. The Tribunal also referred to Mr Munro-Watson’s opinion that the visa applicant’s future risk of offending was “low”: T [355].

28    Having addressed each of the matters identified in sub-paragraphs 8.2(3)(a)–(d), the Tribunal found that the sub-paragraphs “in their totality” weighed “against the refusal of the Applicant’s visa”: T [356]. Accordingly, the Tribunal concluded that Primary Consideration 2 “weighs in favour of the revocation of the refusal of the [visa applicant’s] visa”: T [357].

2.4    Submissions on Grounds 1, 2 and 3

2.4.1    The Minister’s submissions

29    The Minister advanced three contentions in support of Grounds 1, 2 and 3.

30    First, the Minister contended that the Tribunal had misconstrued its task. It was submitted that the Tribunal was authorised by s 500(1)(b) of the Act to review the delegate’s decision under s 501(1) and that, in performing this task, the Tribunal stood “in the shoes” of the Minister: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ). The Minister submitted that this task involves a de novo review of the material before the Tribunal and required it to ask itself whether the correct and preferable decision was to refuse to grant the visa or not. The Minister submitted that the Tribunal did not attend to this task. It was submitted that the Tribunal erroneously conducted a “search for a reason to set aside the delegate’s [decision]” rather than determining whether or not it should exercise its discretion under s 501(1) to refuse the visa application made by the visa applicant, as it was empowered to do by s 43(1) of the (now repealed) Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

31    The Minister submitted that the Tribunal’s repeated usage of the word “revocation” (in its different forms) throughout its reasons indicated that the Tribunal had mistaken the nature of its review function and demonstrated a failure to appreciate that its statutory task required a de novo review of all materials before it at the time of its decision. The Minister further submitted that the language used by the Tribunal suggested that it had erroneously asked itself the question that it would have been required to answer if it had been tasked with reviewing a decision made under s 501CA(4) as to whether to revoke a mandatory decision to cancel a visa made pursuant to s 501(3A) of the Act where a non-citizen is serving a full-time custodial sentence of imprisonment. Although it was accepted that Direction 110 applies to ss 501 and 501CA alike, the Minister submitted that this was not a basis for concluding that the error was immaterial for the reasons articulated by O’Sullivan J in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180 and by the Full Court in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125; 295 FCR 315.

32    Second, the Minister contended that the Tribunal misconstrued paragraph 8.2 of Direction 110 and thereby failed to comply with s 499(2A) of the Act with the result that the Tribunal had engaged in jurisdictional error. The Minister submitted that, on its proper construction, Primary Consideration 2 cannot be a matter that weighs against a decision to refuse a visa—that is, if any weight is to be attributed to this consideration, it must be weighed in a way that is contrary to the interests of the visa applicant that has committed the acts of family violence. It was said that a construction that allowed considerations of proven instances of family violence weighing in favour of a visa applicant was “nonsensical” when one has regard to the terms of Direction 110. In support of this construction, the Minister pointed to the fact that Direction 110 emphasises the seriousness of family violence, including paragraphs 5.2, 8.1.1 and 8.4(2)(a). The Minister also relied on the decision of the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 417 ALR 316 (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ per curiam) at [37]–[38] that:

…para 8.2 identifies that the Australian Government itself has serious concerns about conferring the privilege of entering or remaining in Australia on non-citizens who engage in family violence. The Minister was entitled to identify that as a concern of the Australian Government and to direct decision-makers to consider that identified concern.

…Paragraph 8.2 is focused on the views or policies of the Australian Government. Paragraph 8.2 is directing the decision-maker that the Australian Government has serious concerns about conferring on a non-citizen the privilege of entering or remaining in Australia if the non-citizen has engaged in family violence.

33    In light of the observations made in Ismail, the Minister submitted that the Tribunal’s conclusion that Primary Consideration 2 weighed in favour of the revocation of the delegate’s refusal of the visa involved error and that this error was material.

34    Third, the Minister contended that the Tribunal denied the Minister procedural fairness by failing to put the Minister on notice that it might weigh Primary Consideration 2 in favour of the visa applicant. While it was conceded that the Minister had the opportunity to address the Tribunal on this matter, and to submit that this consideration should result in the attribution of “significant weight in favour of the refusal” of the visa applicant’s visa, the Minister contended that these submissions were made in a context where no contrary argument was advanced and the “Tribunal did not reveal that it might use the family violence consideration favourably to the [visa applicant]”. It was further submitted that, had the Minister been given notice of the Tribunal’s understanding of paragraph 8.2, it would have made submissions as to the proper construction of that paragraph.

2.4.2    The visa applicant’s submissions

35    In response to the Minister’s first argument, the visa applicant disputed that the Tribunal’s repeated usage of the word “revocation” demonstrated a misconception of its statutory task and submitted that this was “a semantic challenge which is devoid of substance”. Although it was conceded that the word “revocation” formed no part of the statutory language of s 501(1), the visa applicant contended that the word did little more than state that the practical effect of a determination by the Tribunal in favour of the visa applicant is to “set aside” or “reverse” the delegate’s decision to refuse the Visa Application.

36    The visa applicant submitted that nothing in the Tribunal’s reasons suggested that it did not engage in a de novo consideration. It was submitted that the Tribunal engaged in a detailed consideration of the evidence, made its own findings of fact and undertook a fulsome analysis of the merits. It was contended that the Tribunal did not consider the matter “through the prism of assessing the Delegate’s reasons or the correctness of the decision” and instead engaged in a genuine de novo assessment.

37    The visa applicant submitted that the Tribunal’s use of the word “non-revocation” at T [425] was an “unfortunate use of language”, but nevertheless contended that the Tribunal had not, in fact, engaged in an exercise under s 501CA(4) and that the word “non-revocation” was simply “the other side of the coin for revocation” and should be understood as meaning to not “set aside” the delegate’s decision. The visa applicant pointed to the fact that the question posed by the text of s 501CA(4)(b)(ii) requires the Minister (or the Tribunal on review) to form a state of satisfaction as to whether there is another reason to revoke a mandatory visa cancellation under s 501(3A), but the Tribunal’s reasons did not disclose that it had undertaken that task, or purported to do so, such that it was apparent that the Tribunal had not misconceived the statutory task that it was charged to perform.

38    In relation to the Minister’s second argument regarding the attribution of weight given by the Tribunal to Primary Consideration 2, the visa applicant submitted that the relevant obligation imposed under s 499(2A) of the Act required the Tribunal to comply with Direction 110. The visa applicant submitted that there was no textual basis to conclude that the Direction required Primary Consideration 2 “to be taken into account in a particular way”. It was further emphasised that Direction 110 served as a guide only and could not dictate the outcome of a decision: citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; 296 FCR 582 at [23] (Mortimer J, as her Honour then was) and Khalil v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2024] FCAFC 119; 305 FCR 26 at [105]–[107] (McDonald J; Katzmann and Dowling JJ agreeing). The visa applicant also submitted that to the extent that a matter “ought to have been taken into account in a different way”, such an error was within jurisdiction: citing Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [163] where Hayne J observed that “incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.)”.

39    As for the Minister’s third argument relating to procedural fairness, the visa applicant submitted that the Minister was “clearly aware” that Primary Consideration 2 would be significant to the Tribunal’s decision. It was further submitted that the Minister was able to, and did, make submissions about Primary Consideration 2, including as to the way in which the Tribunal should take it into account—for example, it was pointed out that the Minister had submitted to the Tribunal “that this primary consideration shall also weigh in favour of refusal of the visa”. Accordingly, the visa applicant submitted that the Minister’s argument amounted to no more than a complaint “that the Tribunal should have said that it disagreed and invited comment” and was no more than a suggestion that the Tribunal should have “given a running commentary or exposed its mental processes or provisional views” before making a decision: referring to Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59; 303 FCR 261 (Rangiah, Thawley and Shariff JJ).

2.5    Consideration of Ground 1

40    There was no dispute between the parties that in exercising its powers of review, the Tribunal was to “do over again” that which was done by the primary decision-maker; that is, to “stand in the shoes” of that decision-maker, exercise the same powers, address the same question, and determine for itself on the material before it the correct and preferable decision: Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; 278 CLR 628 at [14]–[15] (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ per curiam); Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ); Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [40] (Kirby J), [100] (Hayne and Heydon JJ), [134] (Kiefel J). The parties did not dispute that the exercise of this power required the Tribunal to conduct a de novo review.

41    Whilst I am satisfied that the Tribunal considered and assessed the material before it, I am not satisfied that the Tribunal did so by asking itself the correct question. In coming to this conclusion, I do not accept the contentions made by the visa applicant that the Tribunal’s error can be explained by looseness or “infelicities in the language”. To explain my reasons, it is necessary to identify the relevant power that the Tribunal was exercising. In the first instance, this requires an identification of the power exercised by the Minister’s delegate.

42    The relevant power that was exercised by the Minister’s delegate was the power under s 501(1) of the Act. Section 501 of the Act relevantly provides as follows:

501 Refusal or cancellation of visa on character grounds

    Decision of Minister or delegate—natural justice applies

(1)     The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

…

(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.

(6)     For the purposes of this section, a person does not pass the character test if:

(a)     the person has a substantial criminal record (as defined by subsection (7)); or

…

(7)     For the purposes of the character test, a person has a substantial criminal record if:

…

(c)     the person has been sentenced to a term of imprisonment of 12 months or more; or

…

43    It will be immediately apparent that a decision under s 501(1) is distinct to one under s 501(3A). Whilst both sub-sections deal with the subject matter of whether a person satisfies or does not pass the “character test”, s 501(1) is concerned with a refusal by the Minister to grant a visa whereas s 501(3A) is concerned with the Minister’s cancellation of a visa.

44    The exercise of the “refusal power” under s 501(1) is to be contrasted with the decision-making process involved in the exercise of the “cancellation power” under s 501(3A). Section 501(1) confers a broad discretionary power upon the Minister to refuse the grant of a visa if the relevant person does not satisfy the Minister that he or she passes the character test: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179; 287 FCR 581 at [28] (Perram, Thawley and Stewart JJ); Nguyen at [75]. By contrast, where the Minister exercises a power under s 501(3A), s 501CA prescribes a process whereby the person affected by the decision may make representations and the Minister may “revoke” the cancellation if such representations are made and the Minister is satisfied that either “the person passes the character test” (s 501CA(4)(b)(i)) or “there is another reason why the original decision should be revoked” (501CA(4)(b)(ii)). The language of “revoke” (and “revocation” more generally) is peculiar to this provision and several others. For example, the word “revoke” also appears in s 501C(4) which empowers the Minister to revoke an original decision to refuse a visa application under ss 501(3) or 501A(3). However, these provisions are irrelevant to an exercise of the refusal power under s 501(1), and, more importantly, the word “revoke” does not appear in 501(1) (or in s 501, at all).

45    Both decisions made under ss 501(1) and 501CA(4) are subject to review. At the relevant time, s 500(1) provided as follows:

500 Review of decision

(1)     Applications may be made to the Administrative Appeals Tribunal for review of:

(a)    decisions of the Minister under section 200 because of circumstances specified in section 201, other than decisions to which a certificate under section 502 applies; or

(b)     decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or

(ba)     decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa; or

(c)     a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa, relying on:

(i)    subsection 5H(2) or 36(1C); or

(ii)    paragraph 36(2C)(a) or (b) of this Act.

Note:    Decisions to refuse to grant a protection visa to fast track applicants are generally not reviewable by the Administrative Appeals Tribunal. However, some decisions of this kind are reviewable by that Tribunal, in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision in subsection 5(1).

46    It will be evident from s 500(1)(ba) that an application for a review of a decision made under s 501CA(4) is applicable to a decision “not to revoke a decision to cancel a visa”. Again, the language of “revoke” and “revocation” is peculiar to the exercise by the Minister of a confined selection of powers, including the revocation power under s 501CA(4)(b)(ii) in respect of a decision under s 501(3A) and the revocation power under s 501C(4) in respect of a decision under ss 501(3) or 501A(3).

47    At the relevant time, the Tribunal’s jurisdiction in respect of applications for review made under s 500 of the Act was conferred by s 43(1) of the (now repealed) Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Section 43(1) provided:

43 Tribunal’s decision on review

…

(1)     For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

48    Section 43(1) of the AAT Act together with s 500(1)(b) of the Act empowered the Tribunal to exercise the power conferred on the Minister and exercised by the delegate, which, in this case, was s 501(1) of the Act. It is relevant that the power conferred by s 43(1) is a power to affirm, vary or set aside the decision under review. The power is not expressed as one that is directed at revoking the relevant decision under review, but it is plain that the Tribunal does have a power to set aside that decision. I will return below to the significance of this distinction.

49    In the present case, by reason of the application made to the Tribunal, the Tribunal was required to stand in the shoes of the delegate to do over that which the delegate had done. This required the Tribunal to decide whether to refuse the Visa Application. In so determining the matter, the Tribunal was required by s 499(2A) of the Act to comply with Direction 110. In undertaking this review, the Tribunal was required to determine whether the correct and preferable decision was to refuse the Visa Application. Depending on the outcome of its review, the Tribunal was empowered to affirm, vary or set aside the decision under review. In exercising these powers, it was not the Tribunal’s task to correct error on the part of the delegate.

50    A close examination of the Tribunal’s reasons discloses that it carefully considered the materials before it and gave due consideration to the rival submissions made on behalf of the visa applicant and the Minister: see T [234]–[269]. In doing so, the Tribunal carefully considered the oral evidence given by witnesses at the hearing before the Tribunal: see T [179]–[233]. When it came to assessing each of the considerations required by Direction 110, the Tribunal relied upon this body of evidence as well as the evidence that it had received in written form: see eg T [295]–[298], [304], [327], [344]–[350]. However, the Tribunal did so by asking itself the wrong question.

51    It will be recalled that, as set out above at [11], the Tribunal at T [272] stated that to “revoke the refusal of the [visa applicant’s visa” under s 501(1), the Tribunal “must be satisfied that there is another reason, consideration Direction 110, to revoke the refusal” (emphasis added). This frame of analysis directed itself to the wrong question. The language of revocation applies to a review of decision not to revoke a cancellation decision under s 501CA(4)(b)(ii). It is not applicable to a “refusal decision” made under s 501(1). Nor was it correct for the Tribunal to state that it was required to be satisfied that there was “another reason” to revoke the refusal – again, that was to frame the statutory question that is relevant to s 501CA(4)(b)(ii) and not s 501(1).

52    I do not accept the submissions made on behalf of the visa applicant that the Tribunal’s reasons merely disclose a looseness or infelicity of language. It may be accepted that the Tribunal’s reasons are not to be read narrowly, and ought be read as a whole and fairly without “an eye keenly attuned to the perception of error”: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271–272 (Brennan CJ, Toohey, McHugh and Gummow JJ) approving Collector of Customs v Pozzolanic [1993] FCAFC 456; 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [59]–[60] (French CJ, Bell, Keane and Gordon JJ). However, the framing of the relevant question at T [272] was not an isolated instance. It was a frame of analysis that the Tribunal adopted in the balance of its reasons with one exception.

53    As set out above, in respect of each of the primary and other considerations arising under Direction 110, the Tribunal expressed its conclusions by reference to whether the particular consideration (or sub-element of each such consideration) weighed in favour of or against “…the revocation of the refusal of the [visa applicant’s] visa” (emphasis added): T [313], [336]–[337], [356], [369]–[370], [402]–[403], [411], [422] and [425]. There was some force in the visa applicant’s submission that in variously using the word “revoke” or “revocation”, the Tribunal meant to convey no more than that it had engaged in the task of determining whether each relevant factor weighed in favour or against “setting aside” the decision under review. Thus, it was submitted that when the Tribunal used the words “revoke” or “revocation”, the Tribunal in substance meant “set aside”. However, a fundamental difficulty with the visa applicant’s contention is that the Tribunal did not merely use the words “revoke” or “revocation”. Rather, it used those words to express its conclusions as to whether each relevant consideration weighed in favour of or against the “revocation of the refusal of the [visa applicant’s] visa”. Thus, accepting the visa applicant’s contention would involve acceptance that the Tribunal meant to say that it had weighed each consideration in favour of or against “setting aside” of the “refusal” of the visa applicant’s visa. However, the delegate had not refused the visa applicant’s visa; the delegate had refused the Visa Application, being an application for a Subclass 186 Employer Nomination (Permanent) (Class EN) visa. The vice with this framing of the question is most acutely exemplified by the Tribunal’s overall conclusion:

425     The Tribunal finds in conclusion that the weight that should be apportioned to the primary and other considerations with respect to the revocation of the Applicant’s visa, outweigh those considerations with respect to the non-revocation of the Applicant’s visa.

(Emphasis and additional emphasis added.)

54    Read literally, the Tribunal’s conclusion here was that the considerations in favour of the revocation of the visa applicant’s visa outweighed the considerations in favour of non-revocation. If the words “revocation” and “non-revocation” were read as meaning “set aside”, the relevant conclusion expressed by the Tribunal was that the considerations with respect to setting aside the visa applicant’s visa outweighed the considerations with respect to not setting aside the visa applicant’s visa. However, this says nothing about setting aside the refusal of the Visa Application.

55    It may well be the case that what the Tribunal intended to say was that the considerations in favour of setting aside the refusal of the Visa Application outweighed the considerations in favour of not setting aside that refusal. But if this is what the Tribunal intended or meant, it demonstrated the further fundamental difficulty that the Tribunal had not attended to the basal task of addressing itself to the correct and preferable decision. Rather, this analysis demonstrates that the Tribunal set about the discharge of the statutory task by assessing whether each relevant consideration, and the considerations in their totality, weighed in favour of setting aside the delegate’s refusal. This was not the correct question. The Tribunal was required to stand in the shoes of the delegate to determine the correct or preferable decision based on its independent assessment.

56    There are undoubtedly cases where it is possible to stand back from the relevant decision maker’s reasons and look to the substance of the decision that has been made. In essence, the visa applicant urged that approach here by submitting that the Tribunal had engaged in a de novo review and made an independent assessment as to the correct and preferable decision. I do not accept that this is what occurred here. It is plain here that the Tribunal undertook an exercise of assessing whether it should set aside the delegate’s decision, as opposed to assessing what was the correct or preferable decision.

57    In arriving at this conclusion, I have borne in mind that it is sometimes the case that errors arise because members of the Tribunal draw upon a template based on a past decision to formulate subsequent reasons in a different matter: see CRI026 v Republic of Nauru [2018] HCA 19; 92 ALJR 529 (Kiefel CJ, Gageler and Nettle JJ); WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293; 133 FCR 209 at [52] (French J). As the Court observed in CRI026, it is “unfortunate” that such errors occur and it is suggestive of a “lack of care in final proof reading of reasons”: at [57]. CR1026 was a case involving a Pakistani national who claimed he was a refugee entitled to protection because he feared that he would be harmed by members of a particular movement known as the Muttahida Qaumi Movement or “MQM”. The appellant contended that the Tribunal had fallen into error by taking irrelevant considerations into account or by asking itself the wrong question. The basis for this contention was a single paragraph of the Tribunal’s reasons, in which the Tribunal incorrectly referred to the relevant position prevailing in “Sri Lanka” for those who are “Tamils” instead of referring to Karachi in Pakistan and the MQM: at [56]. The Court reasoned that a careful reading of the balance of the Tribunal’s reasons disclosed that this single incorrect paragraph was an “unintended textual error” or “a typographical error — possibly an error in editing a form of words cut and pasted from a previous decision in another matter”: at [56] and [63]. In concluding, the Court held that it was clear that the isolated references to “Sri Lanka” and “Tamils” in a single paragraph were “something the Tribunal could not possibly have intended”: at [63].

58    In WAFK, the Tribunal had referred to so-called “country information” in a section of its reasons headed “Independent Information”: at [30]–[32]. Here, the Tribunal replicated several paragraphs, word for word, from an earlier decision of a different Tribunal member: at [34]. It was submitted that the “overwhelming majority” of the text in the “Independent Information” section was copied from previous Tribunal decisions: [31]. Having identified this, it was contended that the Tribunal had failed to properly consider the “country information” for itself: at [37]. Nevertheless, French J rejected that this indicated a failure to carry out its statutory function, observing that while it would be preferable for Tribunal members to express their conclusions in their own words, a failure to do so does not necessarily mean that a Tribunal member has neglected to turn his or her mind to the facts: at [38]. His Honour concluded that the mere fact of the use of common form text in relation to statements of general principle, general conclusions about country information and even findings of credibility in similar cases was not necessarily indicative of jurisdictional error: at [52].

59    In the present case, an examination of the Tribunal’s reasons indicates that it replicated within its reasons a standard formulation as to whether each relevant consideration weighed in favour or against the so-described “revocation” of the refusal of the visa applicant’s visa. There is nothing to indicate that the Tribunal’s formulation in the present case was drawn from a template. It may have been the result of the Tribunal cutting and pasting the standard formulation in the preparation of its reasons. This amounts to no more than speculation. Irrespective of how the error came about, the fact is that the formulation that the Tribunal repeatedly used throughout its reasons was framed by reference to the wrong statutory question. In my view, the framing of the question and the Tribunal’s assessment of its task was erroneous.

60    Having found error, it is necessary to determine whether this error was material: LPDT Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [9] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). The visa applicant accepted that if error were found, it would be “obviously material”. Having regard to the nature of the error, and the extent to which it impacted upon the Tribunal’s reasoning process, I do not consider that it can be affirmatively concluded that the outcome would have inevitably been the same had the Tribunal not made the error: LPDT at [16]. There is a realistic possibility that the outcome could have been different if the error were not made. Accordingly, I am satisfied that the error here was material and jurisdictional: LPDT at [4].

61    It follows that I am satisfied that Ground 1 has been established.

2.6    Consideration of Ground 2

62    Ground 2 also relates to Primary Consideration 2. Primary Consideration 2 is set out in paragraph 8.2 of Direction 110, which provides as follows:

8.2. Family violence committed by the non-citizen

(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 noncitizen, 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 noncitizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.

63    The purpose of paragraph 8.2 of Direction 110 is to give effect to the Australian Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia: Ismail at [37]–[39]. Paragraph 8.2 ensures that a relevant decision-maker does not have to infer or guess the views of the Australian Government about family violence as it identifies for the decision-maker that family violence is of serious concern to the Australian Government: Ismail at [38]. The consideration is applicable where, relevantly, as was the case here, the non-citizen has been convicted of an offence that involves family violence. In those circumstances, the Tribunal is required to consider the Australian Government’s concerns in a way that is proportionate to the seriousness of the family violence engaged in by the non-citizen by reference to the factors specified in 8.2(3) of Direction 110.

64    It is correct, as the visa applicant submitted, that paragraph 8.2 does not dictate the weight to be given to the Primary Consideration in any given case. As Mortimer J stated in Singh at [23], Direction 110 “…cannot compel a repository of a power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker’s view is that different weight should be given to a particular matter”: see also Khalil at [105]–[107] (McDonald J; Katzmann and Dowling JJ agreeing). However, the Tribunal is nevertheless required to accurately understand the requirements of Direction 110: Singh at [23] citing YNQY v Minister for Immigration & Border Protection [2017] FCA 1466 at [39] (Mortimer J) and Jagroop v Minister for Immigration & Border Protection [2016] FCAFC 48; 241 FCR 461 at [55] (Dowsett J, Kenny J, Mortimer J).

65    In the present case, having found that the visa applicant had engaged in acts of family violence, the Tribunal was required to consider the fact that the Australian Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia and it was required to consider that matter by reference to the seriousness of the family violence engaged in by the non-citizen as set out in paragraph 8.2(3). The Tribunal undertook the latter task by reference to paragraph 8.2(3) and reasoning as follows:

(a)    as to the frequency and any trend of increasing seriousness, the Tribunal reasoned that the visa applicant had not only engaged in aggravated sexual misconduct as against his stepdaughter, he had also subsequently breached an apprehended domestic violence order and had also engaged in further acts of family violence by making attempts to have his ex-wife not provide a statement to the police or to procure through her that his stepdaughter not give evidence in Court: T [341]–[342];

(b)    as to the cumulative impact of the family violence, the Tribunal (relying upon the opinions expressed by Mr Watson-Munro and other evidence) reasoned that the relevant instances of family violence were, in relative terms, isolated and there was no evidence as to the cumulative effects caused by the visa applicant’s family violence: T [343]–[351];

(c)    as to rehabilitation, the Tribunal observed that the visa applicant had taken various strides in this regard and remained committed to that course: T [352]–[353]; and

(d)    as to whether the visa applicant had re-offended since being formally warned, the Tribunal was satisfied that he had not engaged in further offending (though he had largely been incarcerated during relevant periods): T [354]–[355].

66    In the exercise of evaluating the seriousness of the offending and the conduct in question as a means to give effect to the concerns held by the Australian Government, and in assessing the weight to be given to Primary Consideration 2, the Tribunal’s reasons may have supported a conclusion that the visa applicant’s conduct was less serious as a matter of gradation of levels of seriousness of family violence such that it should be given moderate, little or no weight in favour of refusal of the Visa Application. However, here, the Tribunal gave this consideration weight in favour of the “revocation of the refusal of the Applicant’s visa”, which the parties (at least for this purpose) accepted meant that the Tribunal weighed this consideration in favour of the visa applicant. In doing so, the Tribunal misunderstood Primary Consideration 2.

67    As set out above, the purpose of Primary Consideration 2 was to give effect to the Australian Government’s serious concerns about conferring on non-citizens the privilege of entering or remaining in Australia where they have engaged in family violence: Ismail at [37]–[39]. The text of Primary Consideration 2 makes it plain that the seriousness of the Australian Government’s concerns is a function of the seriousness of the family violence in question. The text and structure of paragraph 8.2 indicate that, depending on the seriousness of the family violence in question, Primary Consideratation 2 may have no weight, some weight or very considerable weight. However, in my view it is inconceivable that the fact that a person has engaged in family violence (here, a conviction for engaging in a sexual act towards a minor and seeking to pervert the course of justice by seeking to influence an ex-wife) would weigh in favour of that person, even if the relevant offending was at a low level of seriousness. I am satisfied that the conclusion reached by the Tribunal reflects that it misunderstood and misapplied what paragraph 8.2 required: Ismail at [38].

68    Whilst I accept that the weight to be given to Primary Consideration 2 was a matter for the Tribunal, I am satisfied that in giving weight in favour of the visa applicant, the Tribunal misunderstood and misapplied paragraph 8.2.

69    As to materiality, the visa applicant submitted that even if the Tribunal had erred, the error was not jurisdictional and was an error within jurisdiction. It was submitted that “it is not enough that … the Court considers, the consideration ought to have been taken into account in a different way”: relying on Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [163] (Hayne J) as cited with approval in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [66] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). I do not accept that the error that the Tribunal engaged in was one that could be correctly characterised as one within jurisdiction. It involved the Tribunal fundamentally misunderstanding and misapplying a primary relevant consideration which it was required to apply by reason of s by s 499(2A) of the Act. For the reasons stated above, the relevant error was not one merely of the allocation of weight to that relevant consideration. Given this, it cannot be affirmatively concluded that the outcome would inevitably have been the same had the Tribunal not made the error. If not for the error, there is a realistic possibility the decision could have been different: LPDT at [16]. I am therefore satisfied that the error was jurisdictional and was material.

70    Accordingly, Ground 2 should be upheld.

2.7    Consideration of Ground 3

71    As a result of the conclusions that I have reached in relation to Ground 2, it is strictly unnecessary to consider Ground 3. That is because the Minister’s contentions as to the denial of procedural fairness assumed the correctness of the Tribunal weighing Primary Consideration 2 in favour of the applicant. If I am wrong about the conclusion that I have reached in relation to Ground 2, I accept that the Minister was denied procedural fairness by not being informed of a critical issue that was not obvious on the materials before the Tribunal.

72    I do not accept the visa applicant’s contention that there was no denial of procedural fairness because the Minister had the opportunity to address Primary Consideration 2 in the proceedings before the Tribunal and, in fact, submitted that the factor should weigh in favour of the refusal of the application. An examination of the record before the Tribunal discloses that the visa applicant made written submissions to the Tribunal as follows:

Given the totality of the facts and evidence regarding the family violence, with “very serious” family violence being on the top end of the scale of severity of family violence and including acts from the part 4 definition such as sexual assault, assault, stalking and similar activities, we submit that the applicant’s behaviour would fall towards the less serious range of activities indicated in the part 4 definition and that “very serious” is not an appropriate assessment of the relative level of seriousness of the applicant’s offending. This is argued not to minimise or claim that the applicant’s offending was not serious, but instead to most appropriately assess the relative level of seriousness of the applicant’s specific offending as it exists within the overall range of family violence offending.

73    It will be apparent this extract that the visa applicant did not submit that Primary Consideration 2 should be weighed in his favour. Rather, his submission was in substance that his offending was at a lower level of seriousness. The Minister’s written and oral submissions responded by taking issue with the characterisation of the offending as being at the lower level of seriousness. Nothing within the hearing record before the Tribunal discloses that the Minister was given the opportunity to be heard on whether Primary Consideration 2 should, in fact, weigh in favour of the applicant. Whilst the Tribunal was not required to give a running commentary on the submissions and evidence, I am satisfied that in the particular circumstances procedural fairness required it to inform the Minister that it was considering weighing Primary Consideration 2 in favour of the applicant: see Korat at [26] and [54], [59]–[63].

74    Viewed in the context of these matters, I would have been satisfied that the Minister was denied procedural fairness. It follows that, if it were necessary to decide, I would have upheld Ground 3.

3.    GROUND 4

75    By Ground 4, it was contended that the Tribunal denied the Minister procedural fairness by failing to invite the Minister to address its characterisation of the visa applicant’s criminal offending as “serious” rather than “very serious” when considering the weight to be attributed to paragraph 8.1.1(1) of Direction 110.

76    Ground 4 has as its focus paragraph 8.1 (Primary Consideration 1) and, specifically, paragraph 8.1.1(1)(a) of Direction 110. The overarching subject of Primary Consideration 1 is the “protection of the Australian community from criminal or other serious conduct”. In assessing the Minister’s contentions, it is first necessary to consider the Tribunal’s reasoning in relation to paragraph 8.1.1(1)(a).

3.1    Tribunal’s Reasoning

77    The Tribunal’s detailed consideration of the matters specified in paragraph 8.1.1 is set out in the Tribunal’s Decision at T [274]–[317]. In assessing the nature and seriousness of the visa applicant’s conduct in accordance with paragraph 8.1.1(1), the Tribunal first identified that it was required to have regard to a number of factors enumerated at sub-paragraphs 8.1.1(1)(a)–(i): T [274].

78    Relevantly, the Tribunal began its consideration of sub-paragraph 8.1.1(1)(a) by reference to the text of that sub-paragraph, which relevantly identifies “types of crimes or conduct” that are “viewed very seriously by the Australian Government and the Australian community” (emphasis added). This includes (i) violent and/or sexual crimes, (ii) violent and/or sexual crimes against women or children irrespective of the sentence imposed, and (iii) acts of family violence, regardless of any conviction or the imposition of any sentence: T [275].

79    Having identified this, the Tribunal then acknowledged that the visa applicant had committed a crime of a sexual nature towards his stepdaughter and that she was a minor at the time. Accordingly, the Tribunal stated that it “consider[ed] this criminal offending to be serious” as “reflected in the full-time custodial sentence that was imposed by the District Court of New South Wales”: T [276].

80    The Tribunal next acknowledged that the visa applicant had “also attempted to pervert the course of justice” and that this conduct “constituted disdain for the operation of the Australian criminal justice system”: T [278]–[279]. The Tribunal also observed that the visa applicant was the subject of an apprehended violence order, which he violated by contacting his ex-wife in an attempt to prevent the matter from proceeding through the criminal justice system. In this respect, the Tribunal twice affirmed that it regarded this conduct as “serious”: T [279], [281].

81    Having made these findings, the Tribunal then stated that its findings were “corroborated by the findings of the sentencing judge”, who relevantly found that the visa applicant’s conduct “in each matter [fell] below the middle of the range of objective seriousness”: T [282]–[283].

82    The Tribunal then concluded its consideration of 8.1.1(1)(a) by describing the substance of certain evidence before it. This included evidence adduced by the visa applicant and his ex-wife at the review hearing to the effect that they believed that a “respectful and communicative relationship going forward” would “serve the best interests of their daughter” and that the visa applicant’s separation from the “family unit” has had an impact on herself and her daughter, which would be compounded if he were removed to Colombia: T [285]–[286].

83    The Tribunal then proceeded to consider the remaining sub-paragraphs of 8.1.1 before ultimately finding, as noted above, that “the sub-paragraphs of paragraph 8.1.1(1), in their totality, weigh against the revocation of the refusal of the [visa applicant’s] visa” and observing that “[i]n making this finding the Tribunal finds that the offending engaged in was serious”: T [313]–[314].

84    Relevantly, the Tribunal made the following statements (which the Minister drew particular attention to) at T [276] and [313]–[314]:

The Applicant has committed the crime of a sexual act towards a minor, his stepdaughter, who was 17 at the time of the offending. The Tribunal considers this criminal offending to be serious and this is reflected in the full-time custodial sentence that was imposed by the District Court of New South Wales with respect to the offending.

…

The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh against the revocation of the refusal of the Applicant’s visa.

In making the finding the Tribunal finds that the offending engaged in was serious.

(Emphasis added.)

3.1.1    Submissions

85    The Minister contended that the Tribunal’s characterisation of the visa applicant’s offending as “serious” (and not “very serious”) was “not an obvious and natural conclusion to draw” and that the “Tribunal’s failure to invite the Minister to address this issue was a material failure going to its jurisdiction”. It was further submitted that the Tribunal’s characterisation deviated from the characterisation of the delegate and the submissions of the Minister, which were said to be, “in the clearest of terms, that the [visa applicant’s] offending was ‘very serious’ in the context of paragraph 8.1.1(1)(a) of the Direction”.

86    In this regard, the Minister submitted that the finding that the conduct was merely “serious” was in “deliberate” contradistinction to “very serious”. In support of this, the Minister pointed to sub-paragraphs 8.1.1(1)(a) and (b) of Direction 110, emphasising the distinction between the gravity of conduct by reference to the descriptors “serious” and “very serious”. The Minister contended that the Tribunal was alive to this distinction and had intentionally “ventured to ‘downplay’ the significance of the offending in a manner that was tied directly to the weight it attributed” in circumstances where the parties had otherwise agreed that the visa applicant’s conduct was “very serious” and were not on notice that the Tribunal might conclude otherwise.

87    For his part, the visa applicant submitted that the Minister’s submissions assumed a finding that was not made, that is, the Tribunal’s conclusion that the offending was “serious” was not a finding that the offending was not “very serious”. It was further submitted that, on a fair reading of its reasons, it was clear that the Tribunal found that the offending was “very serious”. In support, it was noted that the Tribunal had acknowledged (at T [239]) the visa applicant’s concession that his conduct was “very serious” and it was submitted that the Tribunal did not at any point advert to any distinction between “serious” and “very serious” conduct. In reply, the Minister noted that the absence of an explanation as to why the conduct was characterised as “serious” rather than “very serious” provided no sound basis for reading the Tribunal’s reasons “in a manner contrary to the express language that the Tribunal adopted”, particularly when the Direction distinguishes between offending that is “serious” and offending that is “very serious”.

3.1.2    Consideration

88    The Minister correctly identified that the terms “serious” and “very serious” are used in paragraph 8.1.1(1) of the Direction to draw distinctions of gravity. As its heading indicates, paragraph 8.1.1 is directed at ensuring decision-makers consider the relative “seriousness” of a non-citizen’s conduct as part of the overall assessment process required under ss 501 or 501CA. One way in which paragraph 8.1.1(1) guides this assessment is by establishing two general tiers of “seriousness” from the perspective of the Australian Government and community, and by providing illustrative examples of conduct that fit within each tier. This is achieved by the first two sub-paragraphs of paragraph 8.1.1(1), which provide:

8.1.1. The nature and seriousness of the conduct

(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:

i.     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

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;

iii.     any conduct that forms the basis for a finding that a noncitizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

…

89    As can be seen, sub-paragraphs (a) and (b) are expressed in substantively similar terms. Each communicates to decision makers the views of the Australian Government and the Australian community about the seriousness of certain types of conduct and crimes, and each provides examples of conduct that are caught within each tier of gravity on a non-exhaustive basis. Recently, in Siale v Minister for Immigration and Citizenship [2025] FCA 608 at [26], SC Derrington J distilled the following principles from the decision of Rangiah and Rofe JJ in BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14; 307 FCR 150, which I gratefully adopt:

(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].

(Emphasis added.)

90    As is made plain from the above, paragraph 8.1.1(1)(a) does not require the Tribunal to characterise the relevant offending as being “very serious” but requires the Tribunal to have regard to the fact that the Australian Government’s view is that such offences are “very serious”. The Tribunal is nevertheless required to assess the seriousness of the non-citizen’s criminal offending and the weight to be attributed to that factor. As SC Derrington J stated in Siale at [34] (relying upon BNY23), crimes of a violent nature may range from common assault to murder and their seriousness and nature may also vary widely.

91    Returning to the Tribunal’s Decision, in my view the Tribunal’s reasons at T [275]–[283] should properly be characterised as reflecting the Tribunal’s assessment of the relative seriousness of the visa applicant’s offending. It does not follow that the Tribunal did not have regard to the fact that the Australian Government’s view was that conduct of the type engaged in by the visa applicant was to be viewed “very seriously”. The Australian Government’s view that such conduct is “very serious” was a factor that was required to be considered in the Tribunal’s assessment as to the “nature and seriousness of the non-citizens criminal offending or other conduct…”.

92    Here, the Tribunal acknowledged that the visa applicant’s solicitor had “conceded that the offending of the [visa applicant] was very serious” and acknowledged the Minister’s submission that offending in the nature of the visa applicant’s offending was viewed “very seriously” by the Australian Government and community: T [239], [256]. Further, the Tribunal expressly acknowledged other submissions made on behalf of the Minister, including in relation to the sentencing judge’s conclusions that the visa applicant’s offending “constituted a severe breach of trust” and that his attempt to interfere with witnesses “was of severe gravity”: T [254]–[255]. As a matter of context, each of these acknowledgements was made shortly before the Tribunal turned to address sub-paragraph 8.1.1(1)(a), at which point it made findings as to the nature and seriousness of the visa applicant’s offending. The Tribunal then commenced its analysis of Primary Consideration 1 and, specifically, paragraph 8.1.1(1)(a) by observing at T [275] that conduct of the type the visa applicant had engaged in was viewed by the Australian Government as “very serious”. However, as noted above, the Australian Government’s view was but one factor that required consideration in the relevant assessment to be made by the Tribunal as to the assessment it made as to the nature and seriousness of the offending.

93    The Tribunal relevantly found that the offence committed by the visa applicant against his stepdaughter “constituted a breach of trust” and, in the same paragraph, referred to and embraced the sentencing judge’s finding that this “constituted an abuse of the [visa applicant’s] authority over her”: T [277]. The Tribunal further found that the visa applicant’s attempted perversion of justice “constituted disdain for the operation of the Australian criminal justice system” and that his attempts to contact his wife were serious in circumstances where doing so violated the terms of an apprehended violence order and his conditions of bail: T [279].

94    In view of the totality of the Tribunal’s reasons, I am not satisfied that the Tribunal misunderstood what it was required to do. And, specifically, I am not satisfied that the Tribunal erred in characterising the visa applicant’s offending in parts of its reasons as being “serious” and not “very serious”.

95    For these reasons, I reject Ground 4.

4.    POSTSCRIPT

96    On Wednesday, 18 June 2025, my chambers received an email from a solicitor in the employ of the law firm acting for the Minister, who I can only infer was acting under the supervision of the solicitor on the record for the Minister. The email stated as follows:

We refer to the above matter and confirm that we act for the Minister, the Applicant. We note that the Hearing in the above matter occurred on 25 March 2025.

We have been instructed to respectfully request an update regarding judgment, particularly whether chambers would be able to provide an estimated date for when judgment may be handed down.

We confirm that Ms Nikolic, the solicitor for the First Respondent, has been copied into this correspondence.

97    This email was received by my chambers when I had completed my reasons but I was editing them for publication this week. The email came as a surprise for three reasons. First, the position that is conveyed to litigants and the profession at [16.1] of the Central Practice Note: National Court Framework and Case Management (CPN-1), is that the Court’s position is that “in the ordinary course (and subject to size and complexity of the matter) the Court will endeavour to deliver judgment resolving the substantive dispute within 3 months of the receipt of final submissions”. The Central Practice Note is readily accessible by all members of the public on the Court’s website. Second, the Central Practice Note at [16.2] identifies the appropriate course of action for parties who wish to enquire about a reserved judgment. It is expressly conveyed that it is not appropriate to contact a judge’s chambers about such an enquiry. Third, the relevant communication indicated that the solicitor for the visa applicant had been copied to the email but it was not made apparent that she had consented to the communication. It is not clear whether, in light of [16.2] of the Central Practice Note, any consideration was given to compliance with the operation of [15.2] as to whether the consent of the other party was required before the communication was sent to chambers.

98    After reviewing the email, I directed my chambers to raise these matters with the Minister’s solicitors. To date, my chambers have only received a single response. It was from the visa applicant’s solicitor stating that she had not seen the correspondence before it was sent to chambers and had not consented to it being sent. There has been no response from the Minister’s solicitor on the record.

99    The Court expects practitioners to be versed with its Practice Notes, which as a starting point requires them to be read and understood. The Court has very clear expectations as to the communications that may be made with chambers. These expectations are set out not only in the Central Practice Note but also in the Guide to Communications with Chambers Staff.

100    If there had been an appropriate response, or any response, from the Minister’s solicitor on the record, I would not have been troubled enough to add this postscript to my reasons. However, the failure to respond at all has compelled me to say something about the matter lest it be assumed that it is acceptable. I wish to make clear that none of this is intended as a criticism of the solicitor (who was not the solicitor on the record) who sent the communication to chambers. The proceedings were conducted by that solicitor and the Minister’s Counsel as well as the visa applicant’s solicitor and Counsel with the utmost efficiency and professionalism, for which I am grateful.

101    As it happens, these reasons have been delivered within three months, as I expected they would be in line with the Central Practice Note at [16.1]. If there was any pressing urgency to the delivery of the reasons that necessitated an earlier determination that the expectation communicated in the Central Practice Note, I would have expected it to be raised with me during the course of the hearing.

Associate:

Dated:    20 June 2025