Federal Court of Australia

Cowgill v Minister for Immigration and Multicultural Affairs [2025] FCA 704

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to Sch 16 (Item 10) of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the Administrative Review Tribunal is substituted for the Administrative Appeals Tribunal as the second respondent.

2.    The applicant's amended originating application for review of a migration decision is dismissed.

3.    The applicant is to pay the first respondent's costs.

4.    In the event the parties are unable to reach agreement about the costs to be paid pursuant to order 3, the costs payable to the first respondent are awarded in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).

5.    The power to make an order about the amount of the costs payable pursuant to order 4 is to be exercised by a registrar of the Court.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    The applicant, Heath Cowgill, was 11 months old when he first arrived in Australia from New Zealand in November 1977. He has lived in Australia ever since and, most recently, enjoyed the benefit of a Class BF-C Absorbed Person (Permanent) visa.

2    Since 1996, Mr Cowgill has accumulated almost 140 convictions, including convictions for offences of dishonesty, drug offences, and traffic-related offences. On 6 October 2020, Mr Cowgill was convicted in the District Court of Western Australia of 54 separate offences, and he was sentenced to 5 years and 6 months' imprisonment.

3    In November 2020, the Minister decided to cancel Mr Cowgill's visa under s 501(3A) of the Migration Act 1958 (Cth) (Act), on the ground that he failed the character test as defined in s 501(6)(a). In that regard, the Minister found that Mr Cowgill had a 'substantial criminal record' within the meaning of s 501(7), and that he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the Commonwealth, a State or a Territory. Mr Cowgill unsuccessfully sought revocation of that decision under s 501CA(4) of the Act, and an application he made to the Administrative Appeals Tribunal (AAT) for a review of that decision also failed. However, Mr Cowgill successfully appealed to this Court, and the AAT's decision was quashed: Cowgill v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1337. The AAT was found to have fallen into jurisdictional error, and Mr Cowgill's application was remitted back to the AAT for reconsideration.

4    On remittal, the AAT concluded that the correct and preferable decision was to refuse to revoke the cancellation of Mr Cowgill's visa. By an amended originating application for review of a migration decision, Mr Cowgill seeks judicial review of that decision. Mr Cowgill contends that the AAT made several jurisdictional errors, by misunderstanding aspects of the task it was required to undertake, by engaging in irrational fact finding, and by making a finding without any evidence.

5    When these proceedings were commenced on 2 May 2024, the AAT was named as the second respondent. However, the AAT was abolished on 14 October 2024: Sch 17 (Item 1) of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Transitional Provisions). The AAT was then replaced by the Administrative Review Tribunal (ART): Administrative Review Tribunal Act 2024 (Cth). Pursuant to Sch 16 (Item 10) of the Transitional Provisions, which applies to any proceedings that, before 14 October 2024, were pending in a court to which the AAT was a party, the ART is substituted as a party to the proceedings.

6    The AAT filed a submitting notice on 29 May 2024, save as to costs.

7    I have reached the conclusion that the AAT did not fall into jurisdictional error and that Mr Cowgill's application must therefore be dismissed. I will shortly explain why I have reached that conclusion. However, it is first necessary to refer to the relevant legislative framework within which the AAT's decision was made, and to summarise why the AAT declined to revoke the original decision to cancel Mr Cowgill's visa.

The relevant legislative framework

8    The Minister cancelled Mr Cowgill's visa pursuant to s 501(3A) of the Act. When read with s 501(7)(c), s 501(3A) relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied:

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

9    There is no issue that Mr Cowgill satisfied both of those criteria. However, it was open to the Minister to revoke the decision to cancel Mr Cowgill's visa pursuant to s 501CA(4) of the Act if Mr Cowgill made representations about that decision and the Minister was satisfied:

(a)    that Mr Cowgill passed the 'character test' (as defined by s 501); or

(b)    that there was another reason why the original decision to cancel the visa should be revoked.

10    There is no issue that the AAT was correct to conclude that Mr Cowgill did not pass the 'character test'. The issue for this Court is whether the AAT fell into jurisdictional error in determining that there was not 'another reason' why the decision to cancel Mr Cowgill's visa should be revoked.

11    Pursuant to s 499(1) of the Act, it was open to the Minister to give written directions to a person or body having functions or powers under the Act, such as the AAT (see s 500 of the Act), if the directions were about the performance of those functions or the exercise of those powers. In accordance with s 499(2A), the AAT was required to comply with any such direction.

12    At the time the AAT made its decision, the Minister had given directions under s 499 of the Act. The relevant direction was 'Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA(4)' (Direction 99), which applied in connection with the making of a decision about whether to revoke the cancellation of a visa under s 501CA(4).

13    Having regard to Mr Cowgill's contentions in this matter, it is only necessary to refer to some aspects of Direction 99 at this stage.

14    The preamble to Direction 99 is in section 5. Under the heading 'objectives', paras 5.1(3) and (4) relevantly provide as follows:

(3)    Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test … and the non-citizen 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. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

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

15    Paragraph 5.2 of Direction 99 sets out several principles that:

provide the framework within which decision-makers should approach their task of deciding … 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 501CA of the Act are identified in Part 2.

16    The principles in para 5.2 relevantly include the following:

(4)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(5)    With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

17    Section 6 of Direction 99 provides that, informed by the principles in para 5.2 of Direction 99, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

18    Section 7 of Direction 99 then provides as follows:

7.    Taking the relevant considerations into account

(1)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2)    Primary considerations should generally be given greater weight than the other considerations.

(3)    One or more primary considerations may outweigh other primary considerations.

19    Section 8 of Direction 99 is in the following terms:

8.    Primary considerations

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.

20    As will soon be seen, Mr Cowgill's grounds of review are concerned with the primary considerations referred to in para 8 of Direction 99. Grounds 1 and 3 focus on the AAT's consideration of 'family violence' in the context of paras 8(1), 8(2), 8(4) and 8(5), and grounds 4 and 5 are concerned with the AAT's approach to the consideration in para 8(5). Ground 2 was abandoned before the hearing of the application.

21    In the circumstances of this case, it is unnecessary to refer to section 9 of Direction 99.

The reasons of the AAT

22    In its reasons for decision, the AAT noted that it was required to determine two issues: first, whether Mr Cowgill passed the 'character test' in s 501(6) of the Act, and second, if Mr Cowgill did not pass that test, whether there was another reason why the cancellation of his visa should be revoked.

23    As Mr Cowgill was a person who had been sentenced to a term of imprisonment of 12 months or more, he did not pass the character test. As I have already said, there is no issue with that aspect of the AAT's decision.

24    The AAT also decided the second issue adversely to Mr Cowgill. Given the nature of Mr Cowgill's grounds of review, it is only necessary to summarise some aspects of the AAT's reasons.

25    The AAT noted that while he has been in Australia, Mr Cowgill has committed several criminal offences as an adult. From 1996 to 2020, a period of about 24 years, Mr Cowgill accumulated over 130 separate convictions. Most of those convictions were for dishonesty offences, drug-related offences, and traffic offences. However, Mr Cowgill has committed other offences, including offences for breaching court orders and other lawful directions. Mr Cowgill's offending came to a head in October 2020 when he was convicted of 54 separate offences in the District Court of Western Australia. Most of those convictions were for offences of dishonesty. However, two offences were concerned with the use of a carriage service to menace, harass or cause offence, and one offence concerned the breach of a violence restraining order (VRO). On 6 October 2020, Mr Cowgill was sentenced to 5 years and 6 months' imprisonment for those offences. Mr Cowgill was still incarcerated at the time the AAT heard his review application.

26    In its reasons for decision, the AAT noted that on 6 February 2003, and then later on 20 November 2012, immigration authorities warned Mr Cowgill about the potential adverse impact his offending might have on his visa status.

27    Apart from having a significant criminal record, Mr Cowgill has also been the subject of four VROs, which were made under the Restraining Orders Act 1997 (WA) on 29 April 2007, 25 September 2008, 10 October 2008 and 19 April 2018 (2018 VRO). Mr Cowgill's partner was the person protected by each of those VROs, although the 2018 VRO also protected his two children. The first three VROs appear to have been revoked shortly after they were made, but the 2018 VRO expired on 18 April 2020.

28    It is not exactly clear why Mr Cowgill's partner obtained each of those VROs. However, the AAT accepted that the VROs 'were not as a consequence of actual physical violence': at [151]. The AAT accepted evidence that was given by Mr Cowgill's partner that she loved him dearly and that she had not sought the restraining orders lightly. However, the AAT also accepted her evidence that Mr Cowgill had been 'abusive, insulting, derogatory and verbally threatening towards her, but had never been physically violent', and that he had engaged in 'nasty drug-fuelled arguing and emotional violence': at [149], [152].

29    Amongst the litany of his convictions, on 19 October 2018 Mr Cowgill was convicted in the Magistrates Court of breaching the 2018 VRO, and he was ordered to pay a fine. The AAT accepted that this offence also did not involve physical violence. According to the police statement of material facts, which was before the AAT, the breach was committed when Mr Cowgill 'stopped his vehicle and engaged in verbal conversation with [Mr Cowgill's partner and daughter] … [Mr Cowgill] then drove away'.

30    In its reasons for decision, the AAT summarised the arguments Mr Cowgill made in support of his contention that the Minister's decision to cancel his visa should be revoked under s 501CA(4) of the Act. Relevantly, Mr Cowgill submitted that he was not a violent person, and that his partner had not obtained a VRO against him on the ground that he had committed any acts of 'family violence', within the meaning of that phrase in Direction 99. However, the AAT also noted that Mr Cowgill had come to accept that some of his behaviour towards his partner could be regarded as 'family violence'.

31    The AAT also summarised the first respondent's submissions. Ultimately, the first respondent argued that the factors against revoking the decision to cancel Mr Cowgill's visa outweighed the considerations in favour of revocation. Relevantly, the first respondent argued that Mr Cowgill's offending was serious, including because he had committed acts of 'family violence'. The first respondent also noted that Mr Cowgill had been convicted of breaching a VRO, and submitted that this factor weighed against revocation, although not determinatively.

32    The AAT then weighed the various considerations identified in sections 8 and 9 of Direction 99, where they were relevant to its decision. After the AAT had regard to all of the primary considerations, and to the other considerations in Direction 99 that were relevant, the AAT concluded that it was not satisfied that there was 'another reason' to revoke the decision to cancel Mr Cowgill's visa. On that basis, the AAT determined that the correct or preferable decision was to affirm the decision not to revoke the cancellation of Mr Cowgill's visa.

33    Having summarised the AAT's reasons for decision, it is now convenient to set out Mr Cowgill's grounds of review.

Grounds of review

34    In his amended originating application for review of a migration decision, Mr Cowgill relies on the following grounds:

1.    The second respondent committed jurisdictional error by misunderstanding and therefore misapplying cl 4(1) of Direction 99, in that:

(a)    the second respondent held at [152] that, for the purposes of the definition of 'family violence' in cl 4(1) of Direction 99, it was sufficient for the relevant family member to have felt that the applicant's behaviour threatened the wellbeing of the family members in the household; and

(b)    on the proper construction of cl 4(1) of Direction 99, behaviour amounts to family violence only if, relevantly, the behaviour causes the family member to be fearful.

2.    [Ground 2 was abandoned].

3.    The second respondent committed jurisdictional error in its treatment of 'family violence' by making inconsistent findings of fact and thereby reasoning illogically, irrationally or unreasonably, in that:

(a)    at [74]-[75], the second respondent held that the behaviour of the applicant which gave rise to a family violence restraining order was not an act of family violence, while at [151]-[152] the second respondent held that the behaviour of the applicant which gave rise to the family violence restraining was family violence;

(b)    at [75], [97] and [218] the second respondent held that the applicant's breach of the family violence restraining order was not an act of family violence, while at [151]-[152] the second respond held that the breach of the family violence restraining order was family violence.

4.    The second respondent committed jurisdictional error by ignoring or misapplying cl 8.5(4) of Direction 99, in that:

(a)    the second respondent independently assessed the community's expectations in the particular case of the applicant and found, at [224], that 'the community's tolerance for [the applicant's] offending conduct has diminished significantly'; and

(b)    on the proper construction of cl 8.5(4) of Direction 99, the Tribunal was prohibited from independently assessing the community's expectations in a particular case.

5.    Alternatively to ground 4, the second respondent committed jurisdictional error in finding as a fact, at [224], that 'the community's tolerance for [the applicant's] offending conduct has diminished significantly' when there was no evidence for that finding of fact.

35    As can be seen, grounds 1 and 3 focus on the AAT's approach to the issue of whether Mr Cowgill had engaged in 'family violence'. More specifically, by ground 1, Mr Cowgill contends that the AAT misunderstood, and therefore misapplied, the definition of the phrase 'family violence', which appears in para 4(1) of Direction 99. Ground 3 is concerned with a related question about whether the AAT reasoned illogically, irrationally or unreasonably because it made inconsistent findings of fact about whether Mr Cowgill had engaged in 'family violence'.

36    In ground 4, Mr Cowgill argues that the AAT independently assessed the expectations of the Australian community in his particular case, contrary to the express prohibition against such an assessment in para 8.5(4) of Direction 99. By ground 5, which is expressed to be in the alternative to ground 4, Mr Cowgill says that the AAT fell into jurisdictional error in finding that the community's tolerance for his offending has 'diminished significantly'. Mr Cowgill contends that the AAT erred because there was no evidence to support that finding, it was not something that was within the AAT's personal or specialised knowledge, and it was not a matter that is commonly known.

Ground 1: Did the AAT misunderstand and therefore misapply para 4(1) of Direction 99?

37    As I have already observed, the AAT was required by section 6 of the Direction 99 to take into account, as a primary consideration, the protection of the Australian community from criminal or other serious conduct under para 8.1 of Direction 99. In that context, and in the circumstance of Mr Cowgill's case, the AAT was required to consider the nature and seriousness of Mr Cowgill's conduct to date: para 8.1(2)(a).

38    When considering the nature and seriousness of Mr Cowgill's conduct to date, the AAT was required to have regard to the fact that acts of 'family violence' are types of crimes or conduct that are viewed very seriously by the Australian Government and by the Australian community: para 8.1.1(1)(a)(iii).

39    The term 'family violence' is defined in para 4(1) of Direction 99, as follows:

family violence means 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 his or her liberty.

(original emphasis)

40    In the circumstances of Mr Cowgill's case, the AAT was also required to consider the issue of 'family violence' under para 8.2 of Direction 99. In that regard, paras 8.2(1) and 8.2(2) relevantly provide that:

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 …

(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.

41    In considering the seriousness of any 'family violence' in which Mr Cowgill had engaged, the AAT was required by para 8.2(3) to take into account various identified factors, where relevant. Those factors included the frequency of such conduct, whether there was any trend of increasing seriousness, the cumulative effect of repeated acts of 'family violence', whether any rehabilitation had been achieved at the time of the decision since the last known act of 'family violence', and whether the person 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'.

42    It was in the context of its consideration of para 8.2 of Direction 99 that the AAT made the following findings at [152] of its reasons for decision:

However, the Tribunal considers the evidence does establish [Mr Cowgill's] conduct constituted family violence, albeit it [was] at the lower end of seriousness. [Mr Cowgill's partner's] evidence establishes she sought orders to remove [Mr Cowgill] from the home because his behaviour under the influence of drugs was a threat to her and the children. She gave evidence [Mr Cowgill] engaged in 'abusive, insulting, derogatory and verbally threatening' behaviour and 'emotional violence' causing her to have concerns which were sufficient to cause her to seek family violence restraining orders and to report a breach of those orders with respect to the 2018 offence. In the Tribunal's view this constitutes, 'threatening or other behaviour by a person that coerces or controls a member of the person's family…or causes the family member to be fearful', within the definition of 'family violence' in para 4(1). [Mr Cowgill's partner's] need not have been fearful [Mr Cowgill] would be physically violent, it is sufficient that she felt [Mr Cowgill's] behaviour threatened the wellbeing of the family members in the household as described in her evidence.

(footnotes omitted; emphasis added)

43    By ground 1, Mr Cowgill contends that the words that have been emphasised at the end of this passage reveal that the AAT misunderstood and misapplied the definition of 'family violence' in para 4(1) of Direction 99, and that it thereby fell into jurisdictional error.

44    Mr Cowgill argues that the definition of 'family violence' that appears in para 4(1) of Direction 99, properly construed, is comprised of two essential and interconnected elements. He contends that the first element is concerned with conduct and, specifically, conduct that amounts to 'violent, threatening or other behaviour'. Mr Cowgill submits that the second element of the definition of 'family violence' is concerned with whether that conduct has a specific effect on a member of that person's family, namely, whether the conduct 'coerces or controls' a family member or whether it 'causes the family member to be fearful'.

45    Mr Cowgill does not take issue with the AAT's conclusion about the first element of the definition of 'family violence', namely, that he did engage in the requisite conduct. He submits, however, that the AAT's finding that Mr Cowgill's partner felt that his behaviour threatened the wellbeing of the family members in their household fell short of satisfying the second element.

46    The first respondent submits that the AAT did not misunderstand or misapply the definition of 'family violence' in para 4(1) of Direction 99. The first respondent submits, firstly, that contrary to Mr Cowgill's construction of the definition of 'family violence' in para 4(1), the definition of 'family violence' does not contain two elements. It submits that the behaviours that fall within that definition are violent, threatening or other behaviours. However, the first respondent argues that while those behaviours may coerce or control or cause fear to a member of the person's family, it is not essential for it to amount to 'family violence'. The first respondent submits that violent behaviour or threatening behaviour are standalone behaviours that fall within the definition of 'family violence'. In support of these submissions, the first respondent relies on the joint judgment of Aldridge and Carew JJ (with whom McClelland DCJ agreed in separate reasons) in Pickford & Pickford [2024] FedCFamC1A 249 (Pickford). The first respondent also submits that even if the AAT did not find that Mr Cowgill's conduct caused his partner to be fearful, it did not follow that the AAT fell into jurisdictional error.

47    Secondly, the first respondent submits that even if Mr Cowgill's definition of 'family violence' is correct, the AAT did not misunderstand or misapply Direction 99. The first respondent contends that the AAT's reasons, properly understood, reveal that it did find that Mr Cowgill's conduct caused his partner to be fearful.

48    In Pickford, the Full Court of the Federal Circuit and Family Court (Div 1) considered the meaning of the definition of the concept of 'family violence' for the purposes of s 4AB of the Family Law Act 1975 (Cth). That definition is in terms that are relevantly identical to the definition of 'family violence' in para 4(1) of Direction 99. In particular, s 4AB(1) provides:

4AB    Definition of family violence etc.

(1)    For the purposes of this Act, family violence means 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.

(original emphasis)

49    In Pickford, Austin and Williams JJ concluded at [109] that this definition was exclusive, not inclusive. Their Honours also held that:

Notwithstanding the obvious breadth of the definition, it is disjunctive and admits of 'violent, threatening or other behaviour' amounting to 'family violence' in only one of two ways, being behaviour of that sort which:

(a)    'coerces' or 'controls' a family member - which is an objective concept focussing upon the characteristic nature of the perpetrator's behaviour towards the victim; or

(b)    causes the family member to be 'fearful' - which is a subjective concept instead focussing upon the victim's reaction to the perpetrator's behaviour.

50    However, Aldridge and Carew JJ, with whom McClelland DCJ agreed, concluded that 'family violence' should not be limited to only two types of behaviour, namely, that which coerces or controls and that which causes fear. In that regard, their Honours held at [44] that:

The definition identifies certain behaviour that may fall within the definition, namely, violent, threatening or other behaviour that coerces or controls a member of the person's family or causes the family member to be fearful. Violent behaviour or threatening behaviour are standalone behaviours that fall within the definition of family violence. Such behaviours may coerce or control or cause fear, but it is not essential. It might be, for instance, that a female punches her male partner but the punch neither coerces nor controls nor causes the male to be fearful. The behaviour may nevertheless be an act of family violence.

51    The first respondent in this case submitted that I am bound to follow the majority's conclusion in Pickford about the proper construction of the definition of the phrase 'family violence'. The first respondent submits that I am bound to follow Pickford as it is a decision of an intermediate appellant court, even though it was not actually concerned with the proper construction of para 4(1) of Direction 99. The first respondent says that I am bound by what was said in Pickford because that case was concerned with the proper construction of a relevantly identical definition of 'family violence' that appears in s 4AB of the Family Law Act.

52    However, while I think that the reasoning of the minority in Pickford, which supports Mr Cowgill's submissions about the proper construction of the definition of 'family violence' in para 4(1), is compelling, it is unnecessary for me to reach any concluded views about the proper construction of para 4(1) of Direction 99, or to decide, in that context, whether I am strictly bound to follow Pickford. This is because I am of the view that the AAT found, in any event, that Mr Cowgill had engaged in threatening or other behaviour that caused his partner to be fearful.

53    As I have already observed, Mr Cowgill's complaint focusses on the final sentence that appears in [152] of the AAT's reasons for decision. However, it is important not to read the AAT's reasons with an overly critical eye: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272.

54    Based on a dictionary definition of the word 'fear' (the 'painful feeling of impending danger, evil, trouble etc.; the feeling or condition of being afraid: Macquarie Dictionary (Online) definition of 'fear'), Mr Cowgill submits that the final sentence in [152] does not contain any finding that his behaviour caused his partner to be 'fearful'. It is true that the AAT did not expressly say, using the exact language used in para 4(1) of Direction 99, that Mr Cowgill had engaged in certain behaviours that caused his partner to be fearful. However, when [152] is read as a whole it is plain that this is exactly what the AAT found.

55    The AAT clearly found that Mr Cowgill's partner had sought VROs to remove him from the home 'because his behaviour under the influence of drugs was a threat to her and the children'. In that context, the AAT accepted the evidence of Mr Cowgill's partner that Mr Cowgill had engaged in 'abusive, insulting, derogatory and verbally threatening' behaviour and 'emotional violence', that caused her to 'have concerns which were sufficient to cause her to seek family violence restraining orders and to report a breach of [the 2018 VRO]'. Plainly, these findings amount to a conclusion that Mr Cowgill had engaged in behaviours of such a nature that they caused his partner to experience the feeling or condition of being afraid. The AAT concluded, in effect, that because Mr Cowgill's partner went to the extent of obtaining several VROs, this established that Mr Cowgill's behaviours had caused her to be fearful.

56    The dictionary meaning upon which Mr Cowgill relies demonstrates that fear is a feeling. The ordinary meaning of the word 'fear' is clearly reflected in the last sentence of the AAT's reasons in [152]. There, the AAT sought to explain in terms that are not challenged, that it was not necessary for the purposes of a finding that there had been 'family violence', for Mr Cowgill's partner to have been 'fearful' that he would be physically violent towards her, and that it was sufficient that Mr Cowgill's partner 'felt' that his behaviour threatened the wellbeing of the family members in the household. Taking into account the ordinary meaning of the word 'fearful', and having regard to its context, it is obvious that the AAT used the word 'felt' to connote 'was fearful'.

57    In my view the AAT did not misunderstand or misapply para 4(1) of Direction 99. Ground 1 must be dismissed.

Ground 3: Did the AAT make inconsistent findings of fact about whether Mr Cowgill had engaged in acts of 'family violence'?

58    The AAT was required to consider whether Mr Cowgill had engaged in acts of 'family violence', when taking the primary considerations referred to in paras 8(1), 8(2), 8(4) and 8(5) of Direction 99 into account. Mr Cowgill contends that when taking those considerations into account, the AAT made inconsistent findings about whether he had engaged in 'family violence', as defined in para 4(1) of Direction 99, and that it therefore fell into jurisdictional error by engaging in illogical, irrational or unreasonable reasoning. In that regard, Mr Cowgill says that on several occasions, the AAT found that he had not engaged in any acts of 'family violence', whereas, on several other occasions, the AAT made findings that he had engaged in acts of 'family violence'.

59    To understand Mr Cowgill's contentions, it is necessary to reproduce those parts of the AAT's reasons that Mr Cowgill says demonstrates that the AAT made inconsistent findings about whether he had engaged in acts of 'family violence'.

60    Mr Cowgill submits that the AAT made several findings that he had not engaged in 'family violence'. In that regard, Mr Cowgill firstly draws attention to [74] and [75] of the AAT's reasons, where the AAT considered para 8.1.1(1)(a) of Direction 99 and said:

In the Tribunal's view, none of [Mr Cowgill's] crimes or offences as an adult and as evidenced before the Tribunal are properly characterised as 'violent crimes', 'sexual crimes' or 'crimes of a violent nature against women or children'. While the Tribunal accepts [Mr Cowgill] was the subject of a Family Violence Restraining Order (FVRO) there was no information to suggest that arose in the context of the sort of violence contemplated in the part of Direction No 99 and in any event, for the reasons discussed further below, the Tribunal did not regard that offence to be particularly serious.

Notwithstanding none of [Mr Cowgill's] offending falls within the categories outlined in par 8.1.1[(1)](a) of Direction No 99, in the Tribunal's view [Mr Cowgill's] record of offending is very serious for the reasons detailed below.

(emphasis added)

61    Paragraph 8.1.1(1)(a) of Direction 99, to which the AAT referred in that passage, is in the following terms:

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 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;

62    Mr Cowgill submits that as para 8.1.1(1)(a)(iii) refers to acts of 'family violence', the highlighted part of the AAT's finding at [74] necessarily means that it found that the conduct that resulted in the making of the VROs to which he was subject did not amount to such conduct. He also submits that in [75] the AAT necessarily found that the conduct that constituted the offence of breaching the 2018 VRO did not amount to acts of 'family violence'.

63    In addition to those findings, Mr Cowgill also relies on what the AAT said at [97] of its reasons, where it was still considering para 8.1.1(1)(a) of Direction 99:

As noted above, paragraph 8.1.1(1)(a) of Direction No 99 requires the Tribunal to take into account whether [Mr Cowgill] has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that might be considered serious by the Australian Government and community. While [Mr Cowgill] has been convicted of common assault and for the breach of a FVRO, having regard to the circumstances of those offences the Tribunal does not consider them to be of the nature of offences which fall within the category contemplated by this part of Direction No 99. This assessment is consistent with submissions from the Respondent which contended the FVRO offence should be considered under the Family Violence considerations at par 8.2 of Direction No 99.

(footnotes omitted; emphasis added)

64    Mr Cowgill submits that this amounts to a further finding that his conduct that constituted a breach of the 2018 VRO did not amount to acts of 'family violence'.

65    When the AAT came to consider para 8.4 of Direction 99, which is concerned with the best interests of minor children in Australia affected by the decision, under para 8.4(4)(g), the AAT was required to have regard to the best interest of any children, including by reference to any:

evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.

(emphasis added)

66    In this context, the AAT made the following observation at [197] of its reasons:

Paragraph 8.3(4)(g) [sic - 8.4(4)(g)] of Direction No 99 requires the Tribunal to consider whether a child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen. There is no evidence of physical violence by [Mr Cowgill] towards [Mr Cowgill's children] and while [Mr Cowgill's partner] said in oral evidence that she had obtained restraining orders against [Mr Cowgill] in part to protect the children the Tribunal does not consider there is evidence to establish the children have been exposed to family violence or that there is a likelihood they would be in the future.

(footnotes omitted; emphasis added)

67    Mr Cowgill's case is that as the AAT found that Mr Cowgill's children were never exposed to 'family violence', this amounts to a finding that there was no act of 'family violence'.

68    The AAT also considered the issue of 'family violence' in the context of para 8.5 of Direction 99. Paragraph 8.5 of Direction 99 is concerned with the 'Expectations of the Australian Community'. As para 8.5 is the subject of grounds 4 and 5, it is convenient at this point to reproduce it in full:

8.5    Expectations of the Australian Community

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

(2)    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)    acts of family violence; or

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

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

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

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

(f)    worker exploitation.

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

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

(emphasis added)

69    When considering the expectations of the Australian community, under para 8.5, the AAT said the following, at [218] of its reasons:

For the reasons noted earlier, the Tribunal does not consider that [Mr Cowgill's] offences are of the kind contemplated by sub-paras 8.5(2)(a)-(f). However, the Tribunal has found that his offending history is very serious reflected in a long and sustained history of offending which has attracted significant sentences of imprisonment. The Tribunal has also found that there is an on-going risk [Mr Cowgill] will reoffend.

(emphasis added)

70    Mr Cowgill submits that as para 8.5(2)(a) refers to acts of 'family violence', the AAT's finding that the conduct giving rise to his conviction for breaching the 2018 VRO was not 'of the kind contemplated by sub-paras 8.5(2)(a)-(f)', necessarily means that it found that such conduct did not amount to an act of 'family violence'.

71    Having identified the various findings that were made by the AAT, which Mr Cowgill says were findings that he had not engaged in 'family violence', it is then necessary to identify the findings that Mr Cowgill submits are inconsistent with that conclusion. Those findings, which were made in the context of the AAT's consideration of para 8.2 of Direction 99, concerning the question of whether Mr Cowgill had engaged in 'family violence', can be found at [151] and [152] of the AAT's reasons. I have already reproduced [152] when dealing with ground 1. However, to properly understand Mr Cowgill's submissions in the context of ground 3, it is convenient to reproduce both of those paragraphs here:

The Tribunal accepts that the fine with respect to the breach of the family violence restraining order in 2018 was a global fine and there is limited evidence before the Tribunal regarding the details of the restraining orders. Having regard to the evidence available, the Tribunal accepts that the restraining orders were not as a consequence of actual physical violence and that the breach of the order in 2018 did not involve physical violence. This is consistent with [Mr Cowgill's] broader record of offending.

However, the Tribunal considers the evidence does establish [Mr Cowgill's] conduct constituted family violence, albeit it at the lower end of seriousness. [Mr Cowgill's partner's] evidence establishes she sought orders to remove [Mr Cowgill] from the home because his behaviour under the influence of drugs was a threat to her and the children. She gave evidence [Mr Cowgill] engaged in 'abusive, insulting, derogatory and verbally threatening' behaviour and 'emotional violence' causing her to have concerns which were sufficient to cause her to seek family violence restraining orders and to report a breach of those orders with respect to the 2018 offence. In the Tribunal's view this constitutes, 'threatening or other behaviour by a person that coerces or controls a member of the person's family…or causes the family member to be fearful', within the definition of 'family violence' in para 4(1). [Mr Cowgill's partner] need not have been fearful [Mr Cowgill] would be physically violent, it is sufficient that she felt [Mr Cowgill's] behaviour threatened the wellbeing of the family members in the household as described in her evidence.

(footnotes omitted; emphasis added)

72    Mr Cowgill submits that when considered in the context of what the AAT said in [151], the highlighted portion of [152] amounts to a finding that the conduct that gave rise to the various VROs, and the further conduct upon which the conviction for breaching the 2018 VRO was based, was evidence of conduct that constituted 'family violence'. Mr Cowgill then says that this finding is inconsistent with the other findings the AAT made at [74], [75], [97], [197] and [218], to which I have already referred. He contends that this inconsistency demonstrates that the AAT reasoned illogically, irrationally or unreasonably and that it thereby fell into jurisdictional error.

73    In my view, a conclusion that the AAT misunderstood and therefore misapplied the mandatory considerations in paras 8.1.1(1)(a), 8.2, 8.4 and 8.5 of Direction 99 is unavoidable. The AAT clearly formed the view that for the purposes of Direction 99, the meaning of the phrase 'family violence' varies according to the part of the direction that is being considered, notwithstanding that there is only one definition of 'family violence', which is expressed in the chapeau to para 4(1) to apply 'in this Direction'. When the AAT considered the protection of the Australian community under para 8.1 of Direction 99, and in that context considered the nature and seriousness of Mr Cowgill's conduct under para 8.1.1(1), the AAT said at [74] of its reasons that there was no information to suggest that any of the VROs were issued as a consequence of 'the sort of violence contemplated in [para 8.1.1(1) of Direction 99]'. Further, at [97] of its reasons, the AAT said that it did not consider Mr Cowgill's conviction for breaching the 2018 VRO to be 'of the nature of offences which fall within the category contemplated by this part of Direction No 99'. Then, when considering para 8.5 of Direction 99, the AAT said at [218], 'the Tribunal does not consider that [Mr Cowgill's] offences are of the kind contemplated by sub-paras 8.5(2)(a)-(f)' of Direction 99.

74    It seems likely that in reaching those conclusions, the AAT was influenced by the position taken by the first respondent in its statement of facts, issues and contentions, which formed part of the materials before the AAT. In that document, the first respondent contended, in relation to the consideration in para 8.1.1(1)(a) of Direction 99, that the conduct that both gave rise to the VROs, and that constituted a breach of the 2018 VRO, was:

unlikely to be conduct of a kind to which cl 8.1.1(1)(a)(iii) is principally directed. Rather, in the particular facts of this case, the respondent's submission is that it should be considered in the context of cl 8.2 …

(emphasis added)

75    However, there is nothing in the text used in Direction 99 that supports the notion that the phrase 'family violence' has different meanings depending on the context in which it appears. More specifically, there is nothing in the text used anywhere in Direction 99, and in particular where the phrase 'family violence' appears, that suggests that some of the considerations in those sections are only concerned with certain sorts or kinds of 'family violence'. There is certainly nothing that supports a conclusion that if Mr Cowgill had engaged in conduct that amounted to 'family violence', as defined in para 4(1), then that fact could be relevant for the purposes of para 8.2 but, at the same time, not be relevant for the purposes of paras 8.1.1(1)(a), 8.4 or 8.5. To the extent the AAT concluded otherwise, it misunderstood and misapplied the considerations in paras 8.1.1(1)(a), 8.2, 8.4 and 8.5 under Direction 99.

76    Notwithstanding that conclusion, it does not follow that the AAT's failure to properly apply Direction 99 constituted jurisdictional error. As Mr Cowgill properly accepted, in this context such an error will only be jurisdictional if it was material to the AAT's decision to refuse to revoke the cancellation of his visa, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT) at [7], [32] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ), [38] (Beech-Jones J).

77    The effect of the AAT's misunderstanding and misapplication of Direction 99 was that the conduct in which Mr Cowgill had engaged, which conduct resulted in four VROs being issued and a conviction for breaching the 2018 VRO, was not considered by the AAT when it took into account and weighed the considerations in paras 8.1.1(1)(a) and 8.5 of that Direction. That was very clearly to Mr Cowgill's advantage. Had the AAT taken that conduct into account in the context of its consideration of the matters in paras 8.1.1(1)(a) and 8.5, as it should have done, it could only have counted against a decision to revoke the cancellation of his visa.

78    In those circumstances, there is no realistic possibility that the AAT's decision could have been different had it correctly understood and applied Direction 99.

79    Mr Cowgill also relied on [197] of the AAT's reasons for decision in support of his contention that the AAT fell into jurisdictional error by making inconsistent findings about whether he had engaged in acts of 'family violence', and that it thereby engaged in illogical, irrational or unreasonable reasoning. However, contrary to Mr Cowgill's contentions, [197] does not demonstrate that the AAT made inconsistent findings.

80    At [197], which I have already reproduced above at [66] of these reasons, the AAT was in the process of considering para 8.4 of Direction 99, which is concerned with the best interests of minor children in Australia who are affected by the decision. As I have already noted, under para 8.4(4)(g) of Direction 99, the AAT was required, relevantly, to consider any evidence that a child has been, or is at risk of being, subject to or exposed to 'family violence' perpetrated by Mr Cowgill.

81    Contrary to Mr Cowgill's submissions, [197] of the AAT's reasons for decision does not establish that the AAT made an inconsistent finding, or that it otherwise engaged in illogical, irrational or unreasonable reasoning. Instead, the AAT found, as it was entitled to and in Mr Cowgill's favour, that there was no evidence to establish the children have been exposed to 'family violence' or that there is a likelihood they would be in the future.

82    Ground 3 must be dismissed.

Ground 4: Did the AAT ignore or misapply para 8.5(4) of Direction 99?

83    By this ground, Mr Cowgill contends that the AAT fell into jurisdictional error when it took the expectations of the Australian community into account, as required by para 8.5 of Direction 99.

84    The text of para 8.5 is reproduced at [68] of these reasons. This ground is concerned with para 8.5(4), and with the question of whether the AAT ignored or misapplied that aspect of the Direction. Paragraph 8.5(4) of Direction 99 is in the following terms:

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

(emphasis added)

85    Paragraph 8.5(4) reflects the conclusions separately reached by Charlesworth J (at [66]-[67]) and Stewart J (at [104]) in FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454, which concerned an earlier direction that did not contain any express prohibition on carrying out an independent assessment of the community's expectations.

86    Mr Cowgill submits that, contrary to the highlighted portion of para 8.5(4), the AAT independently assessed the community's expectations in the circumstances of his particular case. To properly understand that submission, it is necessary to reproduce the relevant part of the AAT's reasons at [213]-[225] in full:

Expectations of the Australian Community

The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction No 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government to not allow such a non-citizen to enter or remain in Australia.

Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.

The Direction notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds, none of which are relevant to [Mr Cowgill's] circumstances. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen's visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)-(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered 'very seriously' or 'serious'.

Paragraph 8.5(3) of Direction No 99 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the 'norm' expressed in para 8.5(1), which refers to the 'unacceptable risk' of conduct being engaged in. This makes it clear that a 'measureable [sic] risk' of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.

This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.

For the reasons noted earlier, the Tribunal does not consider that [Mr Cowgill's] offences are of the kind contemplated by sub-paras 8.5(2)(a)-(f). However, the Tribunal has found that his offending history is very serious reflected in a long and sustained history of offending which has attracted significant sentences of imprisonment. The Tribunal has also found that there is an on-going risk [Mr Cowgill] will reoffend.

Direction No 99 provides that the community expects non-citizens to be law abiding and that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government to not allow such a non-citizen to enter or remain in Australia. As such the Australian community would expect [Mr Cowgill's] visa would remain cancelled.

The Tribunal notes [Mr Cowgill] contended that the Tribunal should consider that 'informed reasonable members' of the Australian community would not be 'vengeful' and would not expect his visa to be cancelled. In doing so he relied on authorities which considered early Directions and the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, which affirmed the approach established in previous authorities, and reflected in the current direction, that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Minister's directions.

However, the Tribunal must determine whether weight is to be afforded to that expectation. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations.

In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction No 99. Paragraph 5.2(2) directs that [Mr Cowgill], having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(3) expresses a principle similar to para 8.5(2) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.

However, the principles also provide that greater tolerance would be afforded to [Mr Cowgill] where [he] came to Australia as an infant, spent his formative years here and has lived here ever since. Having regard to the principle in 5.2(4) of Direction No 99, the Tribunal finds that the Australian community would have a higher level of tolerance for [Mr Cowgill's] conduct because he has lived in the Australian community for most of his life.

However, the Tribunal has also found that his offending is very serious. He has a sustained history of offending and has failed to heed past warnings which provided him with an opportunity to change his behaviour. In such circumstances the Tribunal finds that the community's tolerance for his offending conduct has diminished significantly.

Overall, the Tribunal finds that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs strongly against revoking the Cancelation [sic] Decision.

(footnotes omitted; emphasis added)

87    The focus of Mr Cowgill's contention is on [224] of the AAT's reasons, which I have emphasised above. He says that this paragraph demonstrates that the AAT did make its own assessment of the expectations of the Australian community, having regard to the circumstances of his particular case, contrary to para 8.5(4) of Direction 99.

88    Mr Cowgill's contention cannot be accepted.

89    At [220] of its reasons, the AAT directed itself in a manner that was entirely consistent with the mandate in para 8.5(4). In that regard, the AAT expressly said that it was not to determine the expectations of the Australian community for itself either by reference to Mr Cowgill's circumstances or to evidence about those expectations. The AAT also recognised that the expectations of the community it was required to consider were those set out in Direction 99. For this Court to accept Mr Cowgill's contention, it would have to conclude that the AAT did what it said it would not do.

90    In any event, the AAT was clearly not carrying out its own assessment of the community's expectations referred to in para 8.5(4) of Direction 99 at [221]-[225] of its reasons.

91    It is apparent from the AAT's reasons that it was alive to section 6 of Direction 99 and to the need for it to be informed by the principles that appear in para 5.2 of Direction 99, which I have reproduced earlier in these reasons, when weighing the considerations in section 8 of that Direction. In that regard, the AAT noted at [222] of its reasons that it was 'guided' by the principles in para 5.2 of Direction 99 and it made specific reference to the principles in paras 5.2(2) and 5.2(3). That approach is entirely consistent with the observations that were made by Colvin J in CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382 (CWRG) at [26]-[27] that the principles in para 5.2 constitute 'overarching matters that must guide the manner and circumstances in which the identified considerations are to be taken into account'.

92    At [223], the AAT referred to the principle in para 5.2(4). However, as the AAT then immediately went on to refer to the fact that the Australian community would have a higher level of tolerance for Mr Cowgill's criminal conduct because he had lived in this country 'for most of his life', the reference to para 5.2(4) at [223] must be an error. Clearly, the AAT must have intended to refer to para 5.2(5).

93    Paragraph 5.2(5) of Direction 99 is sometimes referred to as the 'tolerance principle'. As was explained in CWRG at [54]:

The tolerance principle is a statement of a normative principle to the effect that the Australian community may afford a higher tolerance for offending by those non-citizens who have lived in the country for most of their life or from a very young age. It ameliorates the deeming effect of the preceding principle stated in para 5.2(3) of [Direction 90], which is a principle to the effect that the Australian community expects its government to refuse entry to people who engage in conduct that raises serious character concerns: as to which see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] (Mortimer J); FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 at [80] (Charlesworth J), [104] (Stewart J); and CKL21 v Minister for Home Affairs [2022] FCAFC 70 at [29]‑[30].

94    In a further passage in CWRG that was expressly approved by the Full Court on appeal, it was said that the 'tolerance principle' was 'a principle that was to inform the task of taking into account those matters which [Direction 90] required the Tribunal to take into account': CWRG at [60]; and Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94 (Kumar) at [65].

95    CWRG was concerned with 'Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA' (Direction 90), which was an earlier iteration of Direction 99. In Direction 90, the tolerance principle was expressed in the following terms at para 5.2(4):

(4)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

96    It may be noted that there are differences, and perhaps some significant differences, between the way in which the tolerance principle was expressed in Direction 90 when compared to Direction 99. However, those differences do not relevantly detract from the observations in CWRG to which I have referred.

97    Against that background, it is readily apparent that what the AAT actually purported to do at [223] and [224] of its reasons for decision was to use the tolerance principle to guide or inform its task of weighing the community's expectations under para 8.5 of Direction 99. Specifically, having found that Mr Cowgill had 'lived in the Australian community for most of his life', for the purposes of para 5.2(5), what the AAT did at [223] and [224] was purport to evaluate the community's tolerance for Mr Cowgill's criminal or other serious conduct, and then use that evaluation to inform the weight that should be afforded to the consideration in para 8.5. However, this evaluation did not amount to an independent assessment of the community's expectations in the particular case, contrary to para 8.5(4), as Mr Cowgill submits. In that regard, it must be remembered that the expectations that are the subject of para 8.5 are:

(1)    An expectation that non-citizens will obey Australian laws while in Australia: para 8.5(1).

(2)    An expectation that the Government will not allow non-citizens to enter or remain in Australia where they have engaged in serious conduct in breach of the expectation in (1), or where there is an unacceptable risk that they may do so: para 8.5(1)

(3)    An expectation that the Government can and should refuse entry to non-citizens, or cancel their visa, if they raise serious character concerns through conduct in Australia or elsewhere of the kind set out in subparas (a) to (f) of para 8.5(2): para 8.5(2)

98    Paragraph 8.5(2) also provides that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the community would expect that the person should not be granted or continue to hold a visa.

99    In carrying out its evaluation of the community's tolerance for Mr Cowgill's criminal conduct at [221]-[225], the AAT made no reference to these expectations, as might have been expected had it independently assessed the community's expectations as Mr Cowgill contends. Having expressly recognised that it was not to carry out an independent assessment of the community's expectations, what the AAT purported to do was weigh those expectations, informed by the tolerance principle.

100    For these reasons, ground 4 must be dismissed.

101    Before turning to deal with ground 5, it must be noted that the question of whether it was open to the AAT to consider the tolerance principle in para 5.2(5) of Direction 99, by reference to its own assessment that 'the community's tolerance for [Mr Cowgill's] offending conduct has diminished significantly' is not a matter raised by the grounds of review. Accordingly, nothing in these reasons should be taken to amount to an endorsement of that approach.

Ground 5: Did the AAT find that 'the community's tolerance for [Mr Cowgill's] offending conduct has diminished significantly' without any evidence?

102    By this ground, which is expressed to be in the alternative to ground 4, Mr Cowgill contends that the AAT fell into jurisdictional error by making a finding of fact when there was no evidence for that finding. The finding of fact about which Mr Cowgill complains is the finding at [224] of the AAT's reasons, to which I have already referred, where the AAT found that 'the community's tolerance for his offending behaviour has diminished significantly'.

103    However, even if there was no evidence for the AAT's finding, as alleged by Mr Cowgill, it does not follow that the AAT fell into jurisdictional error. In that regard, the Full Court in XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at [63]-[64] said:

For present purposes, it is sufficient to note that a finding of fact made without a 'skerrick' of evidence will amount to an error of law. Whether such an error of law amounts to jurisdictional error will depend on the nature and significance of the finding of fact. On any view, in order to amount to jurisdictional error, the relevant finding must have been at least a 'critical step' on which the ultimate decision was based, if not a precondition to the exercise of jurisdiction.

In this regard, it is worth noting that the ground of appeal on which the appellant relies alleges jurisdictional error on the basis of legal unreasonableness, namely, that the Tribunal erred by making a finding that was legally unreasonable because it was without a probative basis. An absence of evidence or a lack of logical grounds for a particular finding or inference of fact might be such that 'it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically and rationally on the available material'. However, any such irrationality in the course of making a particular finding of fact would only amount to jurisdictional error if the fact was 'critical' to the ultimate decision.

(citations omitted; emphasis added)

104    The AAT took what it said at [224] into account in reaching its conclusion that the expectations of the Australian community, as provided for in para 8.5 of Direction 99, weighed strongly against revoking the decision to cancel Mr Cowgill's visa. However, what it said in [224] was plainly not critical to the AAT's conclusion that the correct or preferrable decision was to affirm the decision not to revoke the cancellation of Mr Cowgill's visa, and Mr Cowgill does not submit otherwise. The finding at [224] was not even critical to the AAT's assessment of the weight to be afforded to the expectations of the Australian community. As the AAT said, at [221], the weight to be afforded to that expectation would 'depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations' (emphasis added).

105    Even if it is accepted that the AAT's finding in [224] of its reasons for decision was made without a skerrick of evidence such that the AAT erred in law, Mr Cowgill has failed to demonstrate that such error amounts to jurisdictional error.

106    Ground 5 must be dismissed.

Conclusion

107    Mr Cowgill's application for review of a migration decision is dismissed. Further, as none of the grounds of review have been allowed it is appropriate that an order be made that Mr Cowgill is to pay the first respondent's costs.

Pro bono counsel

108    The Court was fortunate to have had the benefit of written and oral submissions made on behalf of Mr Cowgill by Mr Beetham, who appeared on a pro bono basis. The Court thanks Mr Beetham for his willingness to appear as counsel on that basis.

Associate:

Dated:    27 June 2025