Federal Court of Australia

Stamekovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 707

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

3.    Within three working days of the date of these orders the second respondent is to provide to the Court an indication of whether they wish to be heard with respect to the costs order made in order 2 above.

4.    If, pursuant to order 3, the second respondent wishes to be heard with respect to the costs order made in order 2 above, then:

(a)    By 4:00pm AEST on 7 July 2025, the parties are each to file written submissions of no more than three pages confined to the question of costs; and

(b)    Costs will be determined on the papers.

5.    Pursuant to order 3 above, if the second respondent does not wish to be heard with respect to costs, the applicant must pay the second respondent’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

MEAGHER J

introduction

1    The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal to affirm the decision of a delegate of the Minister not to revoke the cancellation of his visa, made pursuant to s 501CA(4) of the Migration Act 1958 (Cth).

2    The applicant is a 59-year-old citizen from Yabuka, a town in Serbia in the former Yugoslavia. He first came to Australia in 1971 at which time he was four years old. He has left Australia for various periods since then, although the timelines are unclear. He has held a Class AR Subclass 151 (Former Resident) visa. 

3    On 22 August 2022, the applicant was convicted of Commit an assault that causes harm – Basic offence, for which he was sentenced to one year and seven months imprisonment. On 16 January 2024, a delegate of the Minister declined to revoke the mandatory cancellation of the applicant’s visa as per s 501CA(4) of the Act (Non-Revocation Decision). On that same day, the applicant applied to the Tribunal for a review of the Non-Revocation Decision. On 26 and 27 March 2024, the Tribunal heard the matter and on 5 April 2024, it delivered reasons which affirmed the Non-Revocation Decision (Tribunal’s Decision or TD).

4    By an amended originating application filed on 4 October 2024, the applicant sought review of the Tribunal’s Decision on the following grounds:

Grounds of application

1.    The Tribunal fell into jurisdictional error by failing to make findings regarding whether non-revocation under section 501CA was in the best interests of each child affected by the decision.

5    For the reasons that follow, the application is dismissed.

LEGISLATIVE FRAMEWORK

6    Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a “substantial criminal record”. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more”. Section 501CA of the Act enables the revocation of a decision to cancel a visa made pursuant to s 501(3A) of the Act. It reads as follows:

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a) give the person:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(3A) The notice under subsection (3) must be given in the prescribed way.

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

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

(b)    the Minister is satisfied:

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

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

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable by application under Part 5.

Note: For notification of decisions under subsection (4) to not revoke, see section 501G.

7    Pursuant to s 499(2A) of the Act, a person or body exercising powers or performing functions under the Act is required to comply with directions made by the Minister under s 499(1). In the present case, Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction), commenced on 3 March 2023 and is the relevant direction. Clause 5 is described as the preamble to the Direction and at cl 5.1(4), states that the purpose of the Direction “is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act”. Clause 5.2 of the Direction sets out principles which “provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA”.

8    Clause 8 of the Direction sets out the primary considerations as follows:

(1)    protection of the Australian community from criminal or other serious conduct [Primary Consideration 1];

(2)    whether the conduct engaged in constituted family violence [Primary Consideration 2];

(3)    the strength, nature and duration of ties to Australia [Primary Consideration 3];

(4)    the best interests of minor children in Australia [Primary Consideration 4];

(5)    expectations of the Australian community [Primary Consideration 5].

9    Clause 9 of the Direction sets out four “Other considerations” to be taken into account where relevant:

a)    legal consequences of the decision [Other Consideration 1];

b)    extent of impediments if removed [Other Consideration 2];

c)    impact on victims [Other Consideration 3];

d)    impact on Australian business interests [Other Consideration 4].

TRIBUNAL DECISION

10    The hearing before the Tribunal took place on 26 and 27 March 2024. The applicant appeared in person, and the Minister was represented by the Australian Government Solicitor.

11    The Tribunal set out details of the applicant’s adult offending, which it noted began in 1985 and continued until as recently as 2022: TD at [23] – [27], [33] – [40], [42] – [70], [72] – [83], [85] – [86], [88] – [94], [97], [102] – [103], [112], [115].

12    With respect to the protection of the Australian community from criminal or other serious conduct the Tribunal considered the applicant’s “family violence” at [158] and his violence towards women at [159] of the TD. It discussed the applicant’s “custodial terms” and recidivism at [164] and [166] of the TD. The applicant’s “serial” offending and “pattern of life as an anti-social, indeed criminal element in our society” was also examined at [166] and [168] of the TD. The Tribunal also referred to “false or misleading information” provided by the applicant at various times throughout the process.

13    At [177] – [179] of the TD, the Tribunal considered the “nature of the harm” posed by the applicant should he “engage in further criminal or other serious conduct” and concluded that it was “very serious” at [179]. This was informed by the applicant’s “violent conduct against various victims, including women and even his own sons”: TD at [179].

14    The Tribunal assessed the “likelihood of the non-citizen engaging in further criminal or other serious conduct”, as required under cl 8.1.2(2)(b) of the Direction at [180] – [185] of the TD, noting that the applicant has been a “lifelong offender” with “nothing in his record to suggest that he has either the capacity or inclination to become a law-abiding member of our community”: TD at [180]. The applicant’s psychologist’s evidence, his record of substance abuse and offending under the influence, and the correctional services’ assessment of the applicant as at a “high risk of reoffending” were considered at [181] – [185] of the TD.

15    Consequently, the Tribunal concluded that Primary Consideration 1 weighed “extremely heavily against revocation of the Applicant’s visa cancellation”: TD at [186].

16    As to whether the applicant engaged in family violence, the Tribunal concluded that Primary Consideration 2 weighed “very heavily against revocation of the cancellation of the Applicant’s visa” on the basis of evidence going to family violence discussed in their analysis of Primary Consideration 1: TD at [187] – [189].

17    Dealing with the strength, nature and duration of the applicant’s ties with Australia the Tribunal noted that while he has had lengthy periods of absence the applicant’s “formative years” were spent in Australia: TD at [190]. The Tribunal considered that the applicant’s “contribution to the Australian community has been overwhelmingly negative”: TD at [191]. It referred to the applicant’s “serial” offending, his involvement with “a criminal, drug abusing, sub-culture”, his failure to pay taxes despite receiving the disability support pension, and his false claims of employment as a carer for 12 years: TD at [191]. The Tribunal took into account the applicant’s family, specifically his children and grandchildren, and described those relationships as “complex”: TD at [192] – [196]. Ultimately, the Tribunal concluded that Primary Consideration 3 weighed “moderately in favour of revocation of the cancellation of the Applicant’s visa”: TD at [197].

18    Turning to the best interests of minor children in Australia, the Tribunal identified its obligations under cll 8.4(1), (2), (3) and (4) of the Direction including that “the best interests of each child should be given individual consideration to the extent that their interests may differ”: TD at [198] – [199]. The Tribunal’s consideration of the children is found at [200] – [206] of the TD as follows:

200.     The relevant minor children in Australia are:

201.     Child A, aged 10, is his granddaughter. Her situation is discussed above. The Applicant has never been a primary carer. He claims that her mother does not mind him having contact with Child A. If the Applicant were removed to Serbia, there would be little practical consequence for Child A. He could continue contact electronically. His claim of a deep connection to her is exaggerated and unreliable.

202.     Child B, aged 5 or 6, granddaughter. The Applicant has never been a primary carer. This child is under Child Protection supervision. The Applicant has had very limited contact with her. His capacity to communicate electronically would be the same in Serbia as here. His claim of a deep connection to her is also exaggerated and unreliable.

203.     Child C, age unknown, R.G’s newborn baby – of whom he claimed to possibly be the father. The child is believed to be in the care of Department for Child Protection. It is now clear that the Applicant is not the child’s father and that he has no role to play there.

204.    The Applicant did not identify any specially relevant connection to the lives of any other children in Australia.

205.     If the Applicant were to return to his former anti-social ways, a prospect which I regard as highly likely, he would be of little value to any of the children and indeed, he may directly or indirectly harm them, by presenting such a negative role model.

206.     If he were to return to Serbia, he could still remain in contact with the children electronically. This would, from their perspective be essentially a continuation of the established arrangements over the past few years, to the extent that any actually existed.

(Footnotes omitted.)

19    The Tribunal concluded that “primary consideration 4 weighs at best slightly in favour of revocation of the Applicant’s visa cancellation” and “[i]n the highly likely event of the Applicant re-offending, this primary consideration would weigh against revocation”: TD at [207].

Primary Consideration 5

20    As to the expectations of the Australian community the Tribunal considered the applicant’s “criminal record”, and the “other matters set out above, in particular the Applicant’s history of violence and contempt for the laws of Australia”: TD at [214]. This led the Tribunal to conclude that “[p]rimary consideration 5 weighs very heavily against revocation of the cancellation of the Applicant’s visa”: TD at [215].

Other Considerations

21    The Tribunal then discussed Other Considerations, as per cl 9 of the Direction: TD at [216] – [231]. The considerations under cll 9.1, 9.3 and 9.4 of the Direction were treated neutrally, as cl 9.1 did not arise in this matter and no relevant evidence was tendered in respect of cl 9.3 and cl 9.4: TD at [217] – [218], [225] – [231].

22    With respect to the extent of impediments if removed the Tribunal took account of the applicant’s age, “various physical and mental ailments”, the potential for “social, medical and/or economic support” in Serbia to be “inferior” to that in Australia, and the possibility that the applicant would suffer “serious dislocation”, stress, and potential adverse mental health impacts and require a period of time to “reestablish” himself if removed: TD at [220], [222] – [223].

23    The Tribunal also considered that there were “no substantial language or cultural barriers”, that the applicant had “family and other connections in Serbia” and that the applicant would be “entitled to the same social, medical and/or economic support as any other Serbian citizen”: TD at [221] – [222].

24    The Tribunal concluded that the Other Consideration in cl 9.2 of the Direction “weighs in favour of revocation”: TD at [224].

cONSIDERATION

Ground 1

25    The applicant’s primary submission was that the Tribunal failed to make a finding as to whether the non-revocation of the applicant’s visa “was in the best interests of each child affected by the decision” and that such a failure amounted to jurisdictional error. In the applicant’s submission the failure was made not only as to the making of a finding with respect to the best interests of the children as a whole, but also as to the making of a finding in relation to each individual child.

26    The applicant submitted that the Tribunal must first make a finding as to whether the revocation is or is not in the best interests of each child and thereafter to undertake a weighing process, relying on Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501; [2012] FCA 266, Lesianawai v Minister for Immigration and Citizenship (2012) 131 ALD 27; [2012] FCA 897, Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45; [2012] FCA 1401 and Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504; [2014] FCAFC 28.

27    The applicant contended that the words used by the Tribunal in [207] of the TD that “primary consideration 4 weighs at best slightly in favour of revocation of the Applicant’s visa cancellation” are not a conclusive or determinative finding, and furthermore arise in the alternative, because they are followed by the words “[i]n the highly likely event of the Applicant re-offending, this primary consideration would weigh against revocation”. The applicant contends that the findings expressed that way are not clear such that the Tribunal failed to make a finding. The applicant referred to a number of cases as examples of the Tribunal failing to make a finding, including Nweke, Lesianawai and Spruill. In the applicant’s submission those are cases where ambiguous findings were made.

28    The Minister accepted that “no express statement” was made in the Tribunal’s reasons as to whether revocation of the cancellation decision was in the best interests of minor children. The Minister also quite correctly accepted that cl 8.4(1) of the Direction requires the making of a determination: see in respect of a similar clause in an earlier Direction, Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15 at [67] which states:

It is not necessary here to seek to chart the boundaries of the Tribunal’s obligation to inquire after the best interests of the children of an applicant for review. There may be cases, hopefully rare, where the evidence presented by the parties does not alert the Tribunal that minor children in Australia may be affected by the decision. There may also be cases where the evidence is such that the only determination which can be made in obedience to cl 9.3(1) of Direction 55 is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 9.3(1) requires a “determination about whether cancellation is, or is not, in the best interests of the child” (emphasis added). Sometimes the best decision “about” whether cancellation is, or is not, in the best interests of the child may be that it is neither.

(Emphasis in original.)

29    The Minister also recognised the possibility of “conflation” between the determination to be made in relation to a consideration and the weight to be attributed to that consideration as discussed in GCRM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 170 ALD 319; [2020] FCA 678 per Jackson J at [30] thus:

Another way of describing the error which counsel for the applicant advanced was that the Tribunal conflated two steps in its reasoning which should have been kept analytically distinct, that is: making a determination about whether revocation is, or is not, in the best interests of the children; and deciding what weight to give to those interests. I doubt it is necessary in all cases for a decision-maker to articulate the steps separately in that way, but I accept that in the present case, the failure to do so led to the error of failing to make a determination about the best interests of the children. The Tribunal went straight to the question of weight.

30    By way of contrast in NBCM v Minister for Home Affairs [2019] FCA 1013 at [66] Markovic J considered that the Tribunal’s finding that “the best interests of the minor children weighed marginally against cancellation” was made on the basis of evidence before it, including evidence set out in preceding paragraphs and “antecedent findings” in its decision, such that “[i]mplicit in the Tribunal’s finding is that the cancellation of the Visa was not in the best interests of the applicant’s minor children”. In that case however, her Honour also concluded that the Tribunal had failed to make a finding with respect to the applicant’s grandchildren which formed part of the basis for the Court allowing the application for judicial review of the Tribunal’s decision: NBCM at [63], [76] and [78]. On appeal the Full Court considered that the Tribunal did make findings with respect to the applicant’s grandchildren at [14] and [25], and in so doing, noted at [23] the need for the way in which the proceedings were conducted before the Tribunal to be taken into account: Minister for Home Affairs v NBCM (2019) 167 ALD 215; [2019] FCAFC 199.

31    In similar terms, at [50] of Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 610 the Court took no issue with the Tribunal’s finding at [236] as follows:

The particular focus of the submission advanced by Mr Mailau is the conclusion of the lengthy section of the Tribunal’s reasons, where at [236] it says:

– I am of the view that the cumulative best interests of the relevant minor children in Australia weigh strongly, but not determinatively, in favour of revocation of the mandatory cancellation of the Applicant’s visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B does not outweigh the very heavy weight I have attributed to Primary Consideration A.

32    In Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177, Farrell and Halley JJ stated at [200]:

… We accept the Minister’s submission that it is implicit in the Tribunal’s finding at DR[85] that the best interests of RGKY’s son weighed in favour of revocation of the cancellation decision. Logically, that is the only way that that primary consideration could be given “moderate” weight. It also reflects the language used by the Tribunal in the last sentence of DR[81].

33    It may therefore be accepted that each case turns on its own facts and circumstances, that the Tribunal’s decision be read as a whole, and that an implicit finding may be made.

34    I turn now to the material before the Tribunal and its reasons. The Minister’s Statement of Facts, Issues and Contentions dealt with the Tribunal’s obligations with respect to the interests of minor children, set out details of each of those children and submitted that given those details “the Tribunal can give this some weight in favour of a finding that there is another reason to revoke the mandatory visa cancellation decision”. As [198] of the Tribunal’s reasons make clear the Tribunal understood the nature of the task it was to undertake in this regard, including that “if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ”.

35    The Tribunal identified each of the minor children at [200] – [203] of the TD as Child A, a 10-year-old granddaughter, Child B, a 5- or 6-year-old granddaughter, and Child C, who may have been the applicant’s child, but in respect of whom the Tribunal ultimately concluded he or she was not. Earlier in its reasons the Tribunal had adverted to each of the applicant’s children at [28] – [31] of the TD, and their children (his grandchildren) – Child A at [71] and [129], Child B at [87] and [129] and Child C at [128]. The Tribunal also, at [125] and [126] of the TD respectively, set out correspondence purportedly provided by two of the applicant’s children one of which refers to the circumstances of Child A and the other to the circumstances of Child B.

36    The Tribunal also set out the impact upon the children should the applicant be removed to Serbia at [201] – [203] and [206] of the TD, and as set out above at [19], came to its conclusion at [207] of the TD.

37    As to that approach the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 36; [2024] HCA 2 stated at [50]:

… A decision-maker’s written reasons for a decision are often structured in sequence. The sequential structure of reasons, so that each topic is dealt with under a separate heading, is not generally a sufficient reason to infer that in dealing with one matter the decision-maker has forgotten the substance of the preceding parts of the reasons or is unaware of the substance of the subsequent parts of the reasons. Nor would it be readily inferred from mere sequential structuring and dealing with each topic under its own heading that a decision-maker had quarantined the assessment of each topic from every other topic …

38    Having regard to the above I am satisfied that the Tribunal made an implicit determination about the best interests of the minor children: Uelese. This approach is consistent with that taken in NBCM at first instance and the Full Court in RGKY and Titoa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 163 in which it was stated at [24] that:

However, in our respectful view it is apparent from the reasons of the Tribunal as a whole that the premise for its conclusion at [133] was that each of the factors considered in the preceding paragraphs led to the attribution of moderate weight in the decision. Indeed, a conclusion as to moderate weight assumes that a determination in favour of the applicant has been made, a matter that the parties did not dispute before the Tribunal. This accords with the approach taken in other decisions of this court including Mailau (upheld on appeal, although the point was not considered); Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 135 ALD 45 (per Robertson J) at [18]; Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177 at [181], [200] (per Farrell, Halley JJ). Indeed, in the present case, our conclusion is supported by the fact that the parties conducted their case before the Tribunal on the mutual assumption that the Tribunal would find that this primary consideration would be determined in favour of the appellant and that the only dispute was as to the weight to be afforded it. That position is confirmed when it is noted that, at [188] of the Tribunal’s reasons, it refers to each of the primary considerations in concluding that the discretion should not be exercised in favour of revocation of the mandatory cancellation of the appellant’s visa. Included in that list is primary consideration 3 which, it says “weights, at best, moderately, but not determinatively, in favour of revocation”.

(Emphasis in original.)

39    This case may be contrasted with that of Spruill in which the Court found jurisdictional error in the Tribunal’s finding at [5]:

… The applicant drew attention to the following paragraphs of the Tribunal’s reasons:

[61]    Furthermore, I find that there is much force in the submission by the Respondent namely that given the short period of time before Joshua reaches his majority, the ability of the Applicant to exercise any parental role is limited.

[62]     No doubt there is an argument that it may be of benefit to Joshua to become reacquainted with his father, although given the Applicant’s background one might question whether the father’s influence would be entirely beneficial. Notwithstanding these factors, I find that Joshua’s best interests do not outweigh the risk to the Australian community posed by the Applicant.

40    Robertson J at [13] in that case stated:

In my opinion, construing the words of the Tribunal beneficially rather than zealously, the Tribunal has not done what is required by cl 9.3(1), that is, “make a determination about whether cancellation is, or is not, in the best interests of the child”. Instead the Tribunal has posited an argument and then found that argument did not outweigh the risk to the Australian community. As submitted by counsel for the applicant, the language of clause 9.3(1) is not a requirement merely to have regard to the best interests of the child.

41    That however is not what has occurred here. Here there is an implicit finding as to the best interests of the minor children and that those interests weigh “at best slightly in favour of revocation”: TD at [207]. The submission that the Tribunal expresses itself in the alternative must be rejected. The second sentence of [207] of the TD was simply an observation of a conditional nature made by the Tribunal.

42    The proposition that the children were not considered individually must also be rejected. As is clear from the references to the paragraphs set out at [35] and [36] above, each child was considered separately, that is they were each given separate pseudonyms and their individual circumstances were considered. In any case it is not clear the extent to which the interests of the minor children differed, given both of them are granddaughters with whom the applicant has had only limited interaction.

43    Therefore, the first ground fails.

Ground 2

44    The applicant submitted, also with respect to the best interests of minor children, that the Tribunal failed to consider a “substantial, clearly articulated claim” which also gives rise to a “denial of procedural fairness”. The applicant alternatively contended that the Tribunal “failed to give proper, genuine and/or realistic consideration to matters before it by not genuinely engaging with the applicants’ [sic] evidence”. In this regard the applicant sought to rely on a series of progress notes in his medical records which state that his son has a half Aboriginal daughter. The nature of the note (which was in similar terms each time) was “[h]as 2 grandchildren (Lazar has an 8-year-old half Aboriginal daughter, Milena has a 5-year-old daughter (in DoChS care)”. The clinical records in question were produced by the Detention Centre in response to a summons and tendered by the Minister before the Tribunal.

45    In making this submission the applicant relied on the statements of Allsop CJ in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225 at [3]:

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

46    Also at [50] of Hands:

A significant body of submission was put to the primary judge (and on appeal) about the nature or definition of Aboriginal status: by reference to descent, self-identification and community acceptance. There is no necessity here to deal with any legal question as to a definition of Aboriginality: cf Eatock v Bolt (2011) 197 FCR 261 at [188] to [189]; Attorney-General (Cth) v Queensland (1990) 25 FCR 125 at 148 and see Shaw v Wolf [1998] FCA 389; 83 FCR 113 at 122. That said, nearly 30 years after the Royal Commission into Aboriginal Deaths in Custody, two decades after the Stolen Generations Report (“Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families”), and after nearly forty years of recognition of land rights based on Aboriginal community of title (see Aboriginal Land Rights Act (Northern Territory) 1976 (Cth)), it is surely now part of Australian society’s cultural awareness and appreciation that kinship, family and community lie at the heart of Aboriginal society, underpinning its laws, rules, and social behaviour.

47    The applicant also took the Court to the judgment in Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436 at [3] in further support for this approach. It states:

For the reasons set out below, I am satisfied that, although the applicant made no express representation that he is an Aboriginal Australian or that he identified as an Aboriginal person, the repeated references in the material before the Tribunal to the applicant’s indigenous heritage and evident identification, at least at times, as an Aboriginal person along with the evident acceptance by members of the public service of the State of Victoria that the applicant was an Aboriginal person and was to be treated as subject to the recommendations of The Royal Commission into Aboriginal Deaths in Custody, were such that the Tribunal was obliged to consider the strength, duration and nature of the applicant’s social, cultural and spiritual links with the Australian Aboriginal community. The evidence and materials before the Tribunal raised a ‘case’ that was not articulated to the effect that the applicant identified as an Aboriginal Australian and, by necessary implication, had social, cultural and spiritual ties to members of the Australian Aboriginal community. While evidence of those ties was sparse, the Tribunal was bound to consider them and it failed to do so. There will be an order quashing the Tribunal’s decision to affirm the delegates [sic] decision not to revoke the cancellation of the applicant’s visa and an order remitting the matter to the Tribunal for determination according to law. I will hear the parties on the question of costs.

48    The applicant also contended the usual position is that representations must be significant and “clearly expressed” referring to the test in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 (2020) 280 FCR 178; [2020] FCAFC 166, but that this does not apply in the present circumstances because there was material before the Tribunal which it was “obligated” to take into account because it related to a primary consideration, and that the approach outlined in Brownlie is preferable and “applies equally to the best interests of the applicant’s granddaughter”. This submission is misguided because it appears to conflate two distinct concepts:

(1)    the obligation imposed upon the decision-maker by cl 6 of the Direction to consider the primary considerations under cl 8, which includes the best interests of the child as elaborated in cl 8.4 of the Direction; and

(2)    The manner in which the decision-maker is to consider each of the mandatory primary considerations, as per cl 6 and cl 8 of the Direction in the context of exercising the discretion conveyed by s 501CA(4) of the Act.

When exercising the discretion under s 501CA(4) of the Act to revoke the mandatory cancellation of a visa, it can be accepted that there exists an obligation for the relevant decision-maker to consider the primary considerations as per cl 6 and cl 8 of the Direction, made pursuant to s 499(1) of the Act, being a written direction which a person or body exercising powers or performing functions under the Act is required to comply with as per s 499(2A).

49    If there exists material before the decision-maker which goes to a primary consideration in the Direction, and therefore one which the decision-maker is obliged to consider, it is true that it must be considered by the decision-maker. However, this is not a case in which consideration of the applicant’s grandchildren’s respective best interests, in relation to their Aboriginal heritage, clearly arose on the materials. Thus, the requirement for representations to be significant and clearly expressed as in CTB19 is applicable here. This is particularly crucial in the context of s 501CA(4)(a) of the Act in which an applicant “makes representations in accordance with the invitation” and the Minister may decide to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4) of the Act. I note here for completeness that although the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 disapproved CTB19 at [33], the majority clarified that a “decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them” at [25] and Edelman J still adopted the terminology of “significant and clearly expressed representations” at [78].

50    Although the applicant acknowledged that the material was sparse, as was the case in Brownlie, he seemed to contend that the Minister should have brought the progress notes to the Tribunal’s attention, a submission which simply cannot be maintained in the circumstances of this case.

51    The Minister contended that the parties were not “at odds” with respect to the applicable principles. Nonetheless, the Minister submitted that the present circumstances were more akin to a case like McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) (2020) 170 ALD 538; [2020] FCA 843 than Brownlie.

52    It is, with respect, difficult to see how any such claim or argument emerges on the material before the Tribunal. As the Minister submitted, what must be considered is the importance of the material sought to be relied upon, its relevance and force, and how it arises on the claims or is advanced: ADU18 v Minister for Home Affairs [2020] FCA 366 at [37] – [39], and see also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at [22]. As well, the “forensic context” is important: Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [46].

53    When considered against that background no claim was articulated or clearly emerged on the material. This case is unlike Brownlie in which, while no claim was made, a significant body of evidence was before the Tribunal from which a claim clearly emerged: Brownlie at [3], [80] – [85]. The evidence included frequent and prominent references to the applicant being an Indigenous Australian including that he himself was of indigenous heritage and that he identified as an Aboriginal person: Brownlie at [3], [80] – [85].

54    However, comparing the facts of this case and that of Brownlie does not assist where a claim simply does not emerge from the materials. As was stated by the Full Court in AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56]:

Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

55    Nor is the present case similar to Hands, in which there existed widespread and significant evidence that the appellant’s removal would be detrimental and impose hardship on him and his community, and where the Assistant Minister had failed to adequately engage with this evidence before making a factual finding: Hands at [2], [44] – [45]. The Full Court upheld the appellant’s appeal in relation to this ground and stated at [46] of Hands that “[t]he making of the findings, without any material to found them, given their central importance in the reasoning, is a sufficient basis to conclude that there has been jurisdictional error”. The evidence in relation to the appellant’s relationships and community ties to Australia, particularly his Aboriginal community, was so strong that it could not be overlooked: Hands at [44] – [45], [48] – [51]. In the present case, there is no similarly strong body of evidence, nor does the applicant’s evidence with respect to his relationships with his Aboriginal grandchild suggest that it is in her best interests that he remain in Australia. The applicant has not adduced evidence that he is actively involved in, or accepted by, the Aboriginal community to which his grandchild belongs either: See in comparison Hands at [30]. Thus, it cannot be said that this evidence is of such importance to the applicant’s case that the decision was “utterly at odds with any reasonable reading of the whole of the material”: Hands at [32].

56    For those reasons, the second ground also fails.

57    I note that the parties made submissions regarding materiality but given the findings above it is not necessary that I consider them.

58    I thank pro-bono counsel and solicitors for appearing on behalf of the applicant. Their assistance to this Court is greatly appreciated.

59    The applicant’s application is dismissed. As there is no reason why costs ought not follow the event, the applicant must pay the first respondent’s costs as agreed or taxed. I note that the second respondent filed a submitting notice, in which it stated that it would abide by the orders of the Court but still wished to be heard on the question of costs. Consequently, within three working days of the date of the orders made in this judgment, the second respondent must provide the Court with an indication of whether they still wish to be heard with respect to costs. If the second respondent does not wish to be heard with respect to costs, the applicant must pay the second respondent’s costs as agreed or taxed.

Associate:

Dated:    30 June 2025