Federal Court of Australia

CVDQ v Minister for Immigration and Multicultural Affairs (No 2) [2025] FCA 1101

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings be dismissed with costs, including the first respondent’s costs of and incidental to the appearance at the hearing on 1 August 2025 and the costs thrown away by the amendment to the application, in the form filed on 15 August 2025.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION AND BACKGROUND

1    This is an application for judicial review of a decision of the second respondent (Tribunal), which affirmed a decision of a delegate of the first respondent (Minister) not to revoke pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act) the cancellation of the applicant’s Special Category (TY-444) visa. It requires an extension of time, which was only opposed on the basis that the grounds of review identified below do not reveal a case of sufficient merit that would warrant an extension. The delay was short and there is no real reason why an extension ought not be granted.

2    At the hearing, as oral argument proceeded, the application appeared to raise a matter of some interest relating to “Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction). As is well-known, the Direction operates as a guide to decision-makers in exercising powers under ss 501 or 501CA of the Act and, in exercising power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in the Direction.

3    Before coming to the primary issue raised and how it is to be resolved in accordance with very recent authority, it is worth setting out some background.

4    The applicant is a New Zealand citizen. On 25 February 2022, her visa was mandatorily cancelled under s 501(3A) of the Act on the basis that she did not pass the character test. Relevantly, she was convicted of two counts of “dishonestly obtaining property by deception T-1”, six counts of attempt to “dishonestly obtain financial advantage etc by deception-T1 (Attempt)” and one count of “deal with property proceeds of crime<$100000-T2” and in September 2021, she was sentenced to an aggregate term of imprisonment of six years.

5    On 18 October 2024, a delegate of the Minister decided not to revoke the mandatory cancellation pursuant to s 501CA(4) of the Act and by written reasons dated 19 March 2025 (TR), the Tribunal found there was not another reason why the decision to cancel should be revoked. It followed that the Tribunal affirmed the decision under review.

B    THE TWO GROUNDS

6    I have already touched upon the nature of the primary case developed during oral submissions, but there were two grounds of review.

7    The applicant asserts:

(1)    the Tribunal erred in having made a finding of a close association between the applicant and “AN” because it lacked an evident and intelligible basis (Ground 1); and

(2)    the Tribunal breached s 499 of the Act in having decided according to its own view of the expectations of the Australian community, and that the Tribunal’s view included a finding on “serious character concerns” that is inconsistent with the Direction (Ground 2).

C    GROUND 1

8    The applicant contends that a significant matter in the Tribunal’s decision is the applicant’s risk of reoffending.

9    As part of the reasoning towards its conclusion on risk, the Tribunal stated (at TR [58]):

On balance, I find the evidence supports a finding that the Applicant will continue to have a close association with AN should she return to the community. I consider ongoing close association with AN adds significantly to the risk she may reoffend.

(Emphasis added)

10    The reference to “AN” is the applicant’s former partner and in the TR (at [60]), the Tribunal noted:

The Applicant’s association with AN is of concern and in my view adds significantly to the risk of reoffending. The documented history suggests he was a significant factor contributing to her offending, through his abuse of the Applicant, drug use and withholding appropriate treatment.

11    The asserted difficulty with this process of reasoning is that the Tribunal heard evidence from the applicant that the “close association” with AN had ceased in 2025 and that she was in a different relationship and no longer with AN. Further evidence was adduced that the applicant intended to live separately from AN in the future and that two friends would help her to live separately and to join the community. One of these friends, a community worker, appeared at the Tribunal hearing, and gave evidence in support of the applicant’s independent living. Further, the Tribunal accepted that most recently before her detention, the applicant was in the community from July 2024 to December 2024 and she was not subject to abuse, forced drug use or the denial of treatment.

12    In the light of all this, it is asserted that there was no basis to assume facts might arise which were inconsistent with this evidence and there was a want of material showing: (a) the applicant’s new relationship would fail; (b) the community support on offer to the applicant would not lead her to live separately; and (c) a reversal of the most recent absence of any close association with AN and any reoffending.

13    In the absence of such material, it is said the Tribunal’s finding (at [58] extracted above) “lacked an evident and intelligible basis”. Put another way, it is said the Tribunal did not have a probative basis for its finding of a “positive likelihood” that the applicant would have a close association with AN, which was a factor considered as adding significantly to the risk that the applicant might reoffend.

Consideration

14    The applicant’s argument does not withstand any scrutiny. It does not do justice as to how the Tribunal dealt with this aspect of its consideration at all. To explain why this is so, it is unfortunately necessary to set out the Tribunal’s reasoning at some length, including as to the duration and nature of the relationship between the applicant and AN.

15    The Tribunal noted (at TR [55]–[57]):

The Applicant has been in a relationship with AN for 22 years and they have seven children together. NSW Justice Health file notes from May 2020 record the Applicant having resolved to leave AN. A previous attempt to leave AN and return to New Zealand was unsuccessful because AN was waiting for the Applicant when she was released from prison. The file notes record in part:

[the Applicant] Having panic attacks, though not as many as she usually does at home. Describes near constant anxiety at home, anticipatory anxiety about when partner might come home.

Has flashbacks about previous trauma, mostly related to her partner. States that he physical assaults her regularly, also states that he has had dealings with bikies and that at one point she was abducted because he owed them money.

Also describes her partner's sister and mother tying her down and scratching her. “I try to just do what he says so I don't get hurt.”

States that she uses CMA [methylamphetamine] to cope with distress at home. States that she has now resolved to leave him.

Reports that last time in·custody she felt the same way though, that SAPOs had assisted her in getting a new passport (he cut hers' up so she couldn't leave). However, when she left prison, someone had obviously told him she was being released because he was waiting for her.

States that if she called her mother, she would come to Aus and retrieve her kids, and take them back to NZ.

She states that she now realises she should tell her parents about the extent of the DV in her relationship, and go to NZ where they will be able to protect her.

Discussed that her main concern is the abusive relationship and that medication is unlikely to help unless she makes changes.

However, also discussed that starting an antidepressant might be helpful to assist with anxiety and mood problems associated with PTSO,

States that her partner coerced her to break the law with the threat of violence. States that he laughed at her when she asked why.

Is wondering whether to tell her lawyer about this.

In cross-examination on sentence in September 2021, the Applicant told the District Court that staying away from AN was one factor that would prevent her from reoffending. Upon her release into the community in 2024, the Applicant returned to live with AN and their Australian-based children. While acknowledging their relationship has been dysfunctional and violent at times, the Applicant maintains AN was not violent towards her after she was released from prison in 2024. She gave evidence that despite her well documented fears of AN, she returned to living with him because she wanted to be near her children. The Applicant gave evidence that AN had changed while she was in prison. He had been to anger management and reduced his alcohol consumption, which she claims is closely linked to his abusive behaviour.

At the hearing the Applicant confirmed that AN had a history of being physically violent towards her, was involved in her offending and had on occasion forced her to use ice. However, she said they were no longer in an intimate relationship, and that both she and AN had entered new relationships while she was imprisoned. Should she remain in Australia, the Applicant gave evidence that she plans to live separately from AN. She anticipates she would be able to find her own accommodation with the support of Ms Bartlett and her friend Shasta Dale. Ms Bartlett and Ms Dale have committed to supporting the Applicant should she return to the community.

16    After referring to the impugned finding, the Tribunal then observed (at TR [59]–[61]):

The Applicant has been assessed as a medium risk of reoffending. Her past offending has been closely linked to her drug dependence, and I accept that she has not used illicit drugs since being imprisoned. She has undertaken some drug and alcohol rehabilitation, and counselling; these will support her efforts to remain drug free. Her resolve to do so has been tested in the community, albeit for a short period, which weighs in her favour.

The Applicant’s association with AN is of concern and in my view adds significantly to the risk of reoffending. The documented history suggests he was a significant factor contributing to her offending, through his abuse of the Applicant, drug use and withholding appropriate treatment. The Applicant has an extensive history of criminal offending, and custodial sentences in the past have proven insufficient to deter her from reoffending.

Based on the evidence, I consider there is a medium risk that the Applicant may reoffend. Overall, this primary consideration weighs very heavily in favour of not revoking the cancellation decision.

17    As the Minister submits, the applicant’s contention that any “close association” with AN had ceased puts the matter too highly. As can been seen from the above, the relevant finding was that they were no longer in an intimate relationship, and that both she and AN had entered new relationships while she was imprisoned and that “[s]hould she remain in Australia, the Applicant gave evidence that she plans to live separately from AN”.

18    It was far from illogical to reason that just because of evidence revealing the applicant and AN had established new relationships with other people, this did not remove the possibility of a continuing close association between the applicant and AN, particularly given the depth and extent of their shared history, including previous failures to separate. Indeed, the suggestion of a lack of logic is further undermined by the reality that following the applicant’s release from prison in 2024, she resumed habitation with AN and their children: TR (at [56]).

19    It was plainly open to the Tribunal to be concerned about the possibility of a continuing association between the applicant and AN, and, given the history, to weigh that factor towards the risk of reoffending.

D    GROUND 2

20    Despite the way this ground was initially articulated, in her initial written submissions, the complaint of the applicant was that as part of its reasoning towards its conclusion on the expectations of the Australian community, the Tribunal relevantly stated (TR (at [88])):

Through her repeated offending, the Applicant has harmed members of the Australian community, and her interactions with the criminal justice system have been at the expense of the Australian community. I accept the Respondent’s contention that the Australian community would expect that a person with her criminal history presents serious character concerns and should not continue to hold a visa. While the Principles at 5.2(6) of the Direction provide that 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, neither consideration applies to the Applicant who arrived in Australia in 2015 when she was 28 years old.

(Emphasis added)

21    In this passage, the expectation is articulated that the applicant should not continue to hold a visa due to “serious character concerns” but, in reliance upon what was stated by the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68; (2023) 297 FCR 662 (at 668–669 [35] per Moshinsky, Stewart and Jackman JJ), it is said that the presentation of “that expectation is confined to the egregious types of cases set out in [cl 8.5 (2)(a)–(f)]” of the Direction.

22    It follows that because the Tribunal does not identify an offence that raises “serious character concerns” as deemed by cl 8.5 (2)(a)–(f), it must have erroneously “proceeded on its own view of community expectations and ‘serious character concerns’”. This is said to be material because if the Tribunal had not made that error it “might have given Primary consideration 5 [expectations of the Australian community] less adverse weight” and the Tribunal “could then have concluded favourably to the applicant”.

23    Given it emerged as common ground that the Tribunal plainly understood that the Direction does not permit the Tribunal to determine for itself what it considers the expectations of the Australian community to be in a particular case, the argument developed during oral argument is that the Tribunal made an error in its decision in relying upon the expectation of the Australian community that the applicant should not continue to hold a visa by reference to para 8.5(1) or 8.5(2) of the Direction. I elaborate on this argument further below.

Consideration

24    It is worth commencing the examination of this ground by setting out para 8.5 of the Direction in full and then what was relevantly said about cognate aspects of an earlier direction in HSRN.

25    The Direction provides:

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 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.

26    Bearing in mind that para 8.4 of Direction 90, entitled “Expectations of the Australian Community” was in relevantly identical terms to para 8.5 of the Direction as set out above, the Full Court said in HSRN (at 668–669 [32]–[36]):

The Full Court in [FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454] considered an earlier iteration of Direction No. 90, namely Direction No. 65 that was given by the Minister on 22 December 2014. The essential structure and approach of Direction No. 90 is much the same as Direction No. 65. The earlier Direction also identified primary and “other” considerations. Like Direction No. 90, one of the primary considerations was the expectations of the Australian community. Much of the wording of the relevant paragraphs (paras 6.3 and 11.3) of Direction No. 65 is the same or similar to that in para 8.4 of Direction No. 90, except that the latter Direction is even clearer in material respects, its changed wording having been apparently based in part on the decision in FYBR.

Relevantly, in FYBR it was held (by Charlesworth and Stewart JJ in separate judgments, Flick J dissenting) that the relevant clause:

(1)    expresses an expectation deemed by the Government to be held by the Australian community and that it is not the role of the decision-maker to undertake an assessment of what the community expectations are in each case (at [61], [66]-[67] and [75] per Charlesworth J and [86], [97], [101] and [103]-[104] per Stewart J); and

(2)    gives expression to an expectation that must of its nature weigh against the grant of a visa in every case (at [75] per Charlesworth J and [86] and [101]-[102] per Stewart J).

It was also held that it is up to the decision-maker, after having considered the primary and other considerations, to reach their own view as to whether the non-citizen should or should not be granted a visa or, in the case of a revocation decision, whether or not the cancellation of the non-citizen’s visa should be revoked (at [73] and [79] per Charlesworth J and [92] and [105] per Stewart J). That is to say, although Charlesworth J held that the deemed expectation of the Australian community is that if the non-citizen fails the character test they will have their visa refused or cancelled (at [72] and [75]) and Stewart J disagreed and held that the deemed expectation is that failing the character test will be held against the non-citizen but that the expectation does not speak to the outcome in any given case (at [97] and [103]), the majority were agreed the expectations of the Australian community, as expressed by the Government in the Direction, do not determine the outcome of the decision because all relevant factors have to be weighed up and considered.

Direction No. 90 is consistent with the above, save that it is even clearer in certain respects. First, it makes it express in paras 8.4(1) and (2) that the expectation of the community is not that failure of the character test should result in the non-citizen being denied a visa or their visa being cancelled – that expectation is confined to the particularly egregious types of cases set out in para 8.4(2). The character test as expressed in ss 501(6) and (7) of the Act can be failed on lesser bases. Secondly, para 8.4(4) expressly provides that “decision-makers should proceed on the basis of the Government’s views” as articulated in the Direction, “without independently assessing the community’s expectations in the particular case” (emphasis added).

On that analysis, there are on the face of it two errors by the Tribunal evident in [63] (quoted at [26] above). First, the Tribunal independently assessed the community expectation. Secondly, the Tribunal concluded that this factor would weigh in favour of revocation of the decision to cancel the respondent’s visa.

(Emphasis added)

27    As would already be evident, relying upon the above emphasised part of HSRN, it is said that only in cases contemplated by para 8.5(2) (involving “particularly egregious types of cases” as set out in the sub-paragraph) is the expectation of the community that the non-citizen should be denied a visa. Put another way, because the applicant’s offending was not within para 8.5(2) (a contention the Minister faintly but unpersuasively contests), it was not open to the Tribunal to identify the community’s expectations in the way it did (TR (at [88])) and to weigh that consideration against the applicant.

28    This argument provoked an extended discussion of precisely what the Full Court meant by its comments in HSRN (at 668–669 [35]), its relationship to earlier authority and, if the emphasised comment was read in the way contended for by the applicant, whether it formed part of the ratio of the case. This last aspect was important because I observed during the hearing that uninstructed by authority, I found the applicant’s contention that the Direction is limited in the way asserted an initially unattractive one (at T20–22).

29    Supplementary submissions were ordered, but events were then overtaken by the publication on 3 September 2025 of the High Court’s decision in Plaintiff S22-2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36.

30    In Plaintiff S22-2025, the High Court dismissed an application for judicial review of a decision not to revoke the mandatory cancellation of the plaintiff’s Temporary Protection (Class XD) (subclass 785) visa (TPV). The plaintiff contended the decision was void on three grounds including (by ground 2), because the delegate misapplied para 8.5 of the Direction. In dealing with this ground, Gageler CJ, Edelman and Jagot JJ observed that it was “common ground that the plaintiff’s offending did not involve conduct of the kind specified in para 8.5(2)” (at [22]).

31    At [26], Gageler CJ, Edelman and Jagot JJ explained that the “Australian community’s general expectations”:

… are to be understood as a reference to the “norm” identified in para 8.5(1) (that “[t]he Australian community expects non-citizens to obey Australian laws while in Australia” and “[w]here a non-citizen has engaged in serious conduct in breach of this expectation ... the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia”) and the statement in the first sentence of para 8.5(2) (that “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 provision in the second sentence of para 8.5(2) beginning with the words “[i]n particular”, as a matter of ordinary English text, operates separately and solely by reference to the specified conduct. Having already characterised the plaintiff's custodial sentence for his offending as reflecting the view of the sentencing court that the offending was “very serious”, the delegate was entitled to give the expectations of the Australian community significant weight in deciding against the revocation of the mandatory cancellation of the plaintiff's visa even though the plaintiff's conduct was not of the kind specified in para 8.5(2).

32    Hence para 8.5(1) contains an expectation which a decision-maker is required to consider as reflecting the Government’s views, that a person who engages in serious conduct in breach of the expectation that the person obey Australian laws while in Australia, should not be allowed to enter or remain in Australia; and a more “particular” expectation is expressed in the second sentence of para 8.5(2) that arises in certain identified circumstances.

33    Given the applicant’s criminal history summarised at [4] above, it was clearly open to find that she presents “serious character concerns”. The fact the conduct did not involve conduct of the particular kind specified in para 8.5(2) does not demonstrate error by the Tribunal in its reasons at TR [88].

34    To the extent any further argument is pressed, as noted above, the assertion that the Tribunal was somehow determining for itself what the Australian community expected in this case is unsustainable (TR (at [88])). Finally, as to the applicant’s initial contention that the Tribunal did not identify the basis of its findings that the applicant presented “serious character concerns”, the Tribunal had earlier plainly addressed in its reasons the applicant’s offending conduct, being serious financial fraud against several victims warranting an aggregate term of imprisonment of six years.

E    ORDERS

35    Neither ground is made out. It follows that the proceeding must be dismissed, and the applicant must pay the costs of the proceedings including the Minister’s costs of and incidental to the appearance at the hearing on 1 August 2025 and the costs thrown away by the amendment to the application, in the form filed on 15 August 2025.

Associate:

Dated: 9 September 2025