Federal Court of Australia

HLXZ v Minister for Immigration and Citizenship [2026] FCA 52

ORDERS

THE COURT ORDERS THAT:

1.    The application dated 22 July 2025 be dismissed, with costs.

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

REASONS FOR JUDGMENT

MOORE J:

1    The applicant is a citizen of the United Kingdom and relocated to Australia when he was 2 years old where he has resided since. At the date of this decision, the applicant is 59 years of age.

2    By originating application dated 22 July 2025, the applicant seeks judicial review of a decision by the Administrative Review Tribunal (Tribunal) to affirm a decision by a delegate of the Minister for Immigration and Citizenship (Minister) to not revoke the mandatory cancellation of the applicant’s visa.

3    The applicant advances a single ground for jurisdictional error, asserting that the Tribunal “failed to complete the exercise of its jurisdiction” by failing to address the applicant’s representation to the Tribunal that Australia failed to protect the applicant in his formative years from sexual abuse.

4    For the reasons that follow, I am not persuaded that the Tribunal’s decision was infected by jurisdictional error. The application must therefore be dismissed.

Background

5    The applicant has an extensive criminal record. The applicant has committed numerous offences since at least 1984, a number of which have carried sentences of imprisonment of more than 12 months.

6    The applicant’s Class BF transitional (permanent) visa was previously subject to a mandatory cancellation in January 2015, on the basis that the applicant had a substantial criminal record and did not pass the character test following his conviction of drug related offences. That decision, which is not the subject of the present application, was revoked by the Minister in September 2016.

7    On 30 May 2022, the applicant was convicted by the District Court of Queensland of the offence “kidnapping for ransom – takes/entices/detains another” and sentenced to imprisonment for six years. The sentence of imprisonment was later reduced to five years on appeal on 4 October 2023.

8    On 25 August 2022, the applicant’s Class BF transitional (permanent) visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that the applicant did not pass the character test as he had a “substantial criminal record” (Cancellation Decision).

9    The applicant made representations to the Minister pursuant to s 501CA(4) of the Migration Act that the Cancellation Decision should be revoked. On 25 October 2023, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (Non-Revocation Decision).

10    The applicant applied to the Administrative Appeals Tribunal (AAT) for merits review of the Non-Revocation Decision. On 22 January 2024, the AAT affirmed the Non-Revocation Decision. However, following the AAT’s decision, the Minister conceded that the AAT’s decision was affected by jurisdictional error. This Court made orders by consent on 20 August 2024 for the AAT’s decision of 22 January 2024 to be set aside and for the matter to be remitted to the AAT, differently constituted, for determination according to law.

11    On 8 July 2025, the Tribunal affirmed the Non-Revocation Decision and produced written reasons for its decision (Reasons). It is unnecessary to provide a comprehensive account of the Reasons having regard to the narrow ground of review advanced by the applicant. In short, the Tribunal concluded that the applicant had a lengthy criminal record and did not pass the character test. The Tribunal also considered whether there was another reason that the Cancellation Decision should be revoked. The Tribunal concluded that the protection of the Australian community and the expectations of the community, having regard to the serious nature of the applicant’s prior offending and the moderate risk of the applicant reoffending, outweighed any considerations in favour of revocation of the Minister’s decision.

12    By originating application, the applicant applied to this Court on 22 July 2025 for judicial review of the Tribunal’s decision on the sole ground that the Tribunal “failed to complete the exercise of its jurisdiction”, in that the Tribunal “failed to address the applicant’s representation that Australia’s failure to protect the applicant in his formative years from sexual abuse was another reason why his visa cancellation should be revoked.”

Legislative scheme

13    Section 501(3A) of the Migration Act provides that the Minister must cancel a person’s visa if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    …; 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.

14    Paragraph (6)(a), as referred to in the above extract, states that a person does not pass the “character test” if the person has a “substantial criminal record” which is defined to include, in paragraph (7)(c), “the person has been sentenced to a term of imprisonment of 12 months or more.”

15    If a visa is cancelled under s 501(3A), the Minister may revoke the cancellation decision pursuant to s 501CA(4) if:

(a)    the person makes representations in accordance with the invitation [to make representations to the Minister]; 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.

16    There is no dispute that the applicant did not pass the “character test” for the purpose of s 501CA(4)(b)(i), extracted above, on the basis of his conviction on 30 May 2022.

17    Section 499 of the Migration Act empowers the Minister to “give written directions to a person or body having functions or powers” under the Migration Act regarding the performance of their functions or the exercise of their powers, and these directions must be complied with. At the time of its decision on 8 July 2025, the Tribunal was required to comply with “Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 110) when deciding whether the Cancellation Decision should be revoked under s 501CA.

18    Direction 110 includes both “principles” and “considerations”. The “principles” are outlined at clause 5.2 and are designed to “provide the framework within which decision-makers should approach their task” of, inter alia, revoking a mandatory cancellation under s 501CA of the Migration Act. The “considerations” include both “primary considerations” and “other considerations” which a decision-maker must consider, where relevant, in making a decision to, inter alia, revoke a mandatory cancellation.

19    It is not necessary for the determination of the present application to describe the “principles” and “considerations” in detail. Direction 110 is lengthy. Nevertheless, I will highlight certain matters.

20    The introductory paragraph of clause 5.2, which contains the “principles”, is as follows:

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

21    The “principles” include the following:

(2)    The safety of the Australian Community is the highest priority of the Australian Government.

(3)    Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(5)    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.

22    Of relevance to the present application, Principle 6 of clause 5.2 provides as follows:

(6)    With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.

23    There are five Primary Considerations outlined in clause 8:

(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.

24    In these reasons, I will refer to the primary consideration at (1) extracted above as Primary Consideration 1, and the primary consideration at (5) extracted above as Primary Consideration 5.

25    Clause 7 of Direction 110 provides that Primary Consideration 1 generally is to be given the greatest weight. In respect of Primary Consideration 1, the decision-maker must give consideration, inter alia, to:

(a)    the nature and seriousness of the non-citizenship’s conduct to date; and

(b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

26    The Other Considerations are outlined at clause 9, which includes the following text:

(1)    In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a)    legal consequences of the decision;

b)    extent of impediments if removed;

c)    impact on Australian business interests

Application for judicial review

27    The sole ground of jurisdictional error advanced by the applicant is that the Tribunal “failed to complete the exercise of its jurisdiction.” In his written submissions in this Court, the applicant put this on the basis that:

the ART was required to address the [applicant’s] representation that Australia’s failure to protect the applicant in his formative years from sexual abuse was a matter that was pertinent to Principle 5.2(6) of Direction 110 as well as being “another reason” why his visa cancellation should be revoked.

28    The applicant thus contends that the Tribunal was required to consider the representation that Australia failed to protect the applicant in his formative years from sexual abuse:

(a)    as a relevant factor within Principle 6, which would consequently inform the weight attributed to the Primary Considerations and Other Considerations; and

(b)    as a freestanding consideration as to whether there was “another reason” to revoke the Cancellation Decision.

29    The way the contention was framed by the applicant in his originating application, written submissions, and oral submissions at the hearing was not that the Tribunal failed to consider the impact of the abuse suffered by the applicant on his subsequent criminal behaviour, or that the Tribunal failed to consider that the applicant had been in Australia from a very young age. Instead, the contention was framed in a more focused way as a failure by the Tribunal to consider the applicant’s representation concerning Australia’s responsibility for the abuse the applicant suffered and the subsequent effects of that abuse on his conduct.

30    In oral submissions in this Court, the asserted responsibility of “Australia” was said to arise from certain abuse having occurred within Australian institutions, being a school and the prison system. It was said that the applicant was owed a duty of care in those institutions. This differed from the way in which the contention was put to the Tribunal, which:

(a)    did not distinguish between abuse in any institution and abuse more generally, and emphasised abuse by the applicant’s uncle (i.e. unrelated to any institution); and

(b)    did not link the contention to any notion of a duty of care.

31    The submissions before the Tribunal did not identify the precise abuse relied upon for the argument, or that it occurred in Australian institutions, or the relevant institutions relied upon for that purpose, and indeed expressly included abuse within the applicant’s family. It is the form of the representation before the Tribunal that is relevant for present purposes, not some reformulation of it in this Court. The submissions in this Court both elevated and altered the representation made to the Tribunal.

32    It is relevant to consider precisely how the matter was argued before the Tribunal.

The representations before the Tribunal

33    The applicant relies upon three paragraphs of his Statement of Facts, Issues and Contentions before the Tribunal dated 13 February 2025 (SFIC), being paragraphs 25, 27 and 45. However, those paragraphs should be viewed in context, and I set out additional relevant passages below. In referring to the contents of the SFIC both here and in the subsequent analysis below, I do not intend to be in any way critical of the document. The applicant had the benefit of a competent legal practitioner who put matters forcefully on his behalf.

34    Under the general rubric of Primary Consideration 1 (protection of the Australian community), the SFIC contained the following arguments in a section headed “the nature and seriousness of the conduct” (emphasis in original; footnotes removed):

19.    The applicant acknowledges the gravity and seriousness of his past actions, and it is important to emphasise that we neither downplay nor justify his past unacceptable behaviors [sic] in any way. With that in mind, we respectfully submit that the applicant should not be viewed, perceived, or treated solely as a 57-year-old man with an extensive criminal record. Instead, we urge the Tribunal to consider his origins as an innocent infant, brought to this country at approximately two years of age (Direction 110, Principle 5.2 (6)), recognising the potential for growth and change over the course of his life. An infant who was abandoned by his parents, his father committed suicide, and he left [sic] to be raped, and suffered, for years…

…

21.    We should not be understood, in any way, as attempting to justify his actions, but it is relevant and important to look at his past conduct through the lens of a fundamentally damaged individual…

22.    Of particular importance, as to this clause, are the remarks by Judge FANTIN of the District Court of Queensland at Carins [sic] when his honour said…

I accept that you suffered a disadvantaged childhood, that you were subjected to abuse as a young person which had a significant adverse impact on you and which constituted an adverse childhood experience…

…

24.    It is respectfully submitted that the applicant’s criminal history should not be, and cannot be, divorced from his poignant background as an infant brought to this country.

25.    Australia played a defining role in shaping him into the person he has become, representing a human tragedy (RB, 268-269 at [7]-[18]). The term “tragedy” aptly captures the essence of his discussions with Dr. Matthew M Tagkalidis, a Consultant Psychiatrist:

He said that after the relevant abuse he felt ‘before I wanted to become a fireman. and I couldn’t do that. I got on drugs.’ He said that ‘I was unable to trust anyone, I was paranoid. I’m still paranoid of people being around me, I wagged a lot to avoid male teachers,’ and that his friendships were minimal after the abuse.” (RB, 382)…

35    The applicant then made the following argument under the heading “the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct” (emphasis in original; footnotes removed):

27.    There should be little doubt that Australia should assume responsibility, as outlined in Principle 5.2 of Direction 110, for the series of events that led the applicant to become involved in activities in Australia. Through Direction 110, the Minister acknowledges Australia’s duty of care, demonstrating a greater degree of tolerance toward the applicant’s criminal behavior [sic], which can be directly linked to his formative years and subsequent life experiences. Having lived in Australia, the applicant has become a victim not only of the Australian community but also of both state and federal government policies.

28.    To that end, senior member Kirk in XCHQ persuasively says:

In making this finding, the Tribunal has been informed by Principle 5 which provides:

Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

The evidence before the Tribunal is that the Applicant came to Australia after his parents separated when he was four and that he has spent his entire life in this country, including undertaking his schooling.

The length of time the Applicant has been living in Australia and the circumstances under which he migrated here are factors that support a finding that there is a higher level of tolerance by Australia for his serious criminal conduct than there would be for a noncitizen who has lived in the community for a much shorter period of time.…

For the reasons above, and applying the guidance in paragraphs 13.1.2(1) and (2) of the Direction, Primary Consideration 1 on balance weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.

29.    Given the applicant’s age upon arrival in Australia and the formative years, entire life he spent here, and the failure of both the states and federal government to protect him, it is reasonable, as senior member Kirk previously argued, to anticipate that the Australian government would assume a higher level of responsibility and exercise greater leniency toward the applicant’s past criminal actions. It is therefore submitted that this Tribunal should find this primary consideration weighs in favour of revocation.

36    The reference to “XCHQ” in the SFIC is to a decision of the AAT in XCHQ and Minister for Home Affairs (Migration) [2018] AATA 4280 (XCHQ).

37    It is relevant to note that the applicant was advancing this part of his argument as a particular application of Principle 6, being the principle that 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. Indeed, the cited passage from XCHQ, said to encapsulate the correct approach, is concerned with the length of time that the non-citizen has been in Australia. It is not concerned with any consideration of whether the Minister’s decision should be informed by a consideration of whether Australia, in some institutional sense, could be said to be in some way responsible for the conduct.

38    When addressing Primary Consideration 5 (expectations of the Australian community), the applicant made the following submission:

45.    It is submitted that, in this case, the Australian community should also bear greater responsibility for this human tragedy. Therefore, similar to Primary Consideration 1 above, the weight of [Primary Consideration 5 (expectations of the Australian community)] against the applicant should be moderated so that it does not outweigh, either individually or collectively, the other considerations in favour of the applicant.

39    The SFIC also included details of the abuse the applicant experienced while at school and at the hands of his uncle. Before the Tribunal were several reports from psychologists and a report from a psychiatrist which detailed this abuse and the impact it had on the applicant’s subsequent behaviour and mental health.

40    Before the Tribunal, the Minister’s Statement of Facts, Issues and Contentions (MSFIC), after recounting the applicant’s extensive criminal history, acknowledged that “the applicant relied upon his difficult childhood, including being sexually abused, and his low mental ability for mitigation in each of the matters for which there are sentencing remarks in the G documents.” The Minister quoted the remarks of the sentencing judge on 17 November 2015 in relation to drug related offences (emphasis removed):

As I observed to you when I last sentenced you, there is, in effect, a point of diminishing return in relation to the mitigating features that I have identified about your personal circumstances, as compelling as they are and as much sympathy as one may have for them. The reality is, notwithstanding the fact that one would not wish your earlier bad life experience in terms of your upbringing on anyone, that others have suffered similarly appalling upbringings yet they manage to obey the law.

You were born in 1966. You are a middle-aged man. Only you can control your fate. Only you can control whether or not you offend. And the time has long passed when one can entirely excuse your offending by reason of your terrible background and for that matter by reason of the psychological and intellectual issues that you unfortunately have. That is not to say I disregard them. As I say already, I intend to have regard to them in mitigation. The practical reality is that they do not count as compellingly as they might for an offender with a much less significant criminal history than yours.

41    The Minister’ submissions in the MSFIC acknowledged the applicant’s representations in the SFIC regarding the impact his childhood had on his subsequent conduct in the context of Primary Consideration 1 (protection of the Australian community). The Minister put the matter as follows (emphasis removed):

69.    The applicant has repeatedly emphasised his difficult upbringing and the claims that this led to his current mental illness and in turn his offending. Indeed, the applicant has claimed that Australia is responsible for the applicant’s difficult childhood and by extension, his offending: AS27. The applicant has asked that the Tribunal take these matters into account in mitigating the seriousness of his offending.

70.    It is to be remembered that factors such as a difficult childhood, mental health problems, abuse and drug taking are often taken into account by criminal courts in mitigation for crimes a person commits. In that setting those things are relevant to a person’s culpability and blameworthiness for crimes given part of the role of a criminal court in imposing sentence is punishment. However, punishment is irrelevant to the exercise of the cancellation or revocation powers in the Migration Act and should not be considered at all. What is centrally relevant to the exercise of these powers is the protection of the community. Therefore, what is of central importance is the risk that an applicant will re-offend and the damage that could be caused to members of the community, not why an individual offended or how morally culpable they are for the offending.

71.    The respondent contends that if the applicant’s offending in the past can be, in part, attributed to his mental health issues, then such issues are also relevant to the risk that he will offend in the future.

42    I have set out these passages from the MSFIC both because they inform the content of the debate between the parties before the Tribunal, and because the Tribunal in its Reasons accepted, in a more shorthand way, aspects of these arguments presented in the MSFIC, which in turn engaged with the way in which the matter was put in the SFIC.

Consideration of the applicant’s contentions

43    As noted earlier, the applicant says that his representation to the Tribunal was pertinent to Principle 6. It will be recalled that Principle 6 is expressed in the following terms:

(6)    With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.

44    There is a potential dilemma for the applicant in framing his argument by alleging a failure by the Tribunal to consider a matter relevant to the application of Principle 6. That dilemma is heightened by the way in which the argument was put to the Tribunal in the SFIC, including with its focus on the analysis in XCHQ. Principle 6 is concerned with whether the non-citizen has lived in Australia for most of their life or from a very young age. If the relevant representation to the Tribunal is characterised by the applicant as an aspect of this matter, then a potential problem for the applicant is that the Tribunal gave consideration to that very matter, in the sense that the Tribunal considered the length of time that the applicant had been in Australia and the age at which he arrived.

45    However, the way that the applicant now frames the argument is that Australia bears some institutional responsibility for his conduct.

46    I note several matters in relation to the applicant’s reliance on Principle 6. First, it can be observed that the introductory paragraph of clause 5.2 distinguishes between the principles that provide the framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation, and the Primary Considerations and Other Considerations that must be considered in making that decision. It follows that as a general principle, a decision-maker is not bound to consider the principles within clause 5.2 in “any particularly rigid way”: Reid v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 302 FCR 273; [2024] FCAFC 16 at [56] (O’Bryan, Abraham and Shariff JJ).

47    Secondly, Principle 6 provides that where the non-citizen seeking revocation of a mandatory cancellation has lived in Australia for most of his or her life or from a very young age, Australia may afford a higher level of tolerance for criminal or other serious conduct.

48    Accordingly, while Principle 6 should inform the approach to deciding whether to revoke a mandatory cancellation, it is not a mandatory consideration in the same sense of Primary Considerations or Other Considerations. There was no requirement by the Tribunal to specifically advert to or “apply” Principle 6: Ripley v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 93 at [17] – [18] (Jackman J); Fuller v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 65 at [38] (Jackson J); NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1077 at [30] (Bromwich J).

49    The applicant did not submit that the relevant matter was a mandatory consideration. Rather, the applicant submits that the relevant representation was “pertinent” and therefore something that the Tribunal should have considered.

50    In my view, Principle 6 is not concerned with attributing some responsibility or blame to Australia for a non-citizen’s conduct. It is, rather, concerned with the length of time that a person has been in Australia. That Principle 6 is concerned with a length of time is evident from its juxtaposition with the immediately preceding principle, being number 5, which is in the following terms:

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.

51    I consider that the meaning of Principle 6 requires little elaboration and directs a decision-maker to evaluate whether Australia may afford a higher level of tolerance to criminal or other serious conduct by a non-citizen who has lived in Australia for most of their life or has lived in Australia from a very young age. To the extent that the applicant contended before the Tribunal that a relevant factor was Australia’s responsibility for previous abuse, that was not an application of Principle 6.

52    The applicant’s second contention is cast more generally as an assertion that the Tribunal was required to consider whether his representation that Australia bears responsibility for the abuse he suffered was “another reason” to revoke the Cancellation Decision.

53    This was not how the matter was put to the Tribunal. As set out above, the argument now emphasised by the applicant was not put as “another reason” to revoke the Cancellation Decision. Rather, it was put first as a matter pertaining to the nature and seriousness of the conduct, and secondly as a matter pertaining to the expectations of the Australian community.

54    However, I accept that there are no “absolute rules” as to how a decision-maker might or might not be satisfied about a reason for revocation: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at [15] (Keane, Gordon, Edelman, Steward and Gleeson JJ). The list of Other Considerations at clause 9 is expressed in non-exhaustive terms such that other considerations not expressly referred to in Direction 110 can be considered: see Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 637 at [60] (Logan J).

55    Reliance was placed by the applicant on Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1/2021), among other authorities, in support of the contention that the Tribunal was required to refer to the relevant representation. The applicant claims that the representation was a “substantial” and “clearly articulated argument” in the SFIC, and the Tribunal’s failure to address the representation in its Reasons was a jurisdictional error of failing to complete its review.

56    In Plaintiff M1/2021, the plurality of the High Court clarified the content of the obligation of decision-makers to consider representations made under s 501CA(4). The plurality (Kiefel CJ, Keane, Gordon and Steward JJ) at [22] – [27] observed as follows:

22    Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

23    It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

26    Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

27     None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

57    Having regard to the plurality’s observations in Plaintiff M1/2021, the Full Court in ECE21 v Minister for Home Affairs (2023) 297 FCR 422; [2023] FCAFC 52 (ECE21) at [7] – [9] (Mortimer, Colvin and O’Sullivan JJ) recognised two aspects to the statutory task of enquiring into decision-makers’ consideration of representations made under s 501CA(4), as follows:

7    Having regard to what their Honours said in Plaintiff M1/2021, two aspects of the statutory task must be borne in mind for present purposes. The first aspect is that there is an important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand). What was emphasised by their Honours in Plaintiff M1/2021 was the width of the discretionary power conferred by s 501CA(4). The consequence is that it is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance. Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister’s reasons, even a matter that was clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made.

8    Hence when it was said in Plaintiff M1/2021 that ‘a decision-maker must read, identify, understand and evaluate the representations’ (at [24]), noting that this does not extend to claims that are not clearly articulated or which do not clearly arise on the materials (at [25]), reference was being made to comprehending what was being advanced by the applicant. Similarly at [27] when it was said that relevant facts or materials or substantial and clearly articulated arguments must not be ignored or overlooked. In respect of both these propositions, the reasons of a decision-maker must demonstrate this has occurred. Accordingly, approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: at [26]. This, it seems, was the aspect of Full Court decisions of this Court, like Omar, that the High Court disagreed with.

9    The second aspect of the statutory task that it is necessary to bear in mind is that the weight to be afforded particular representations was a matter for the Minister: Plaintiff M1/2021 at [24]. That includes forming the view that the representation, or a matter arising from the representation, should be afforded no weight. Even so, the Minister must first understand the purport of the representations, facts and materials. If it is shown that the Minister proceeded without being consciously aware of the purport of the representations, facts and materials (and matters which clearly arise on the materials) and their possible significance, such that the Minister proceeded without a proper awareness and understanding of what was being put forward and therefore without a proper appreciation of the matters that might bear upon the decision to be made, then jurisdictional error may be demonstrated. On the reasoning in Plaintiff M1/2021, if the decision-maker lacks such an understanding, they will not be in a position for themselves to ‘sift’ what has been put to them, and attribute the weight they consider appropriate to various matters.

58    To similar effect is the decision of the Full Court in Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 431; [2023] FCAFC 98 at [51] – [53] (Katzmann, Jackson and McEvoy JJ).

59    It is apparent from the foregoing that Plaintiff M1/2021 did not displace the principle that a decision-maker is not required in its reasons to expressly refer to every piece of evidence or contention made by the applicant: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2023] FCAFC 184 at [46] (French, Sackville and Hely JJ). The plurality in Plaintiff M1/2021 expressly stated that a decision-maker is not required to treat every statement within the representations as a mandatory relevant consideration: Plaintiff M1/2021 at [23]. A failure to refer to a piece of evidence or a contention is therefore not necessarily indicative that the decision-maker has failed to consider it or that the decision is infected by jurisdictional error: see ETA067 v Republic of Nauru (2018) 360 ALR 228; (2018) HCA 46 (ETA067) at [13] (Bell, Keane and Gordon JJ).

60    A failure to refer to a matter may be evidence that the decision-maker misunderstood or overlooked that matter if the matter was “of such objective importance to the decision to be made” or “of significance” as to be dispositive of the decision: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 418 ALR 133; [2024] HCA 11 at [45] (Jagot and Beech-Jones JJ); ECE21 at [7] (Mortimer, Colvin and O’Sullivan JJ); ETA067 at [14] (Bell, Keane and Gordon JJ); Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531; [2018] FCAFC 116 at [30] (Rangiah J) and [68] (Colvin J).

61    The Minister accepted that the relevant representation was made by the applicant to the Tribunal. However, the Minister asserts that there was no requirement for the Tribunal to consider it. Notwithstanding this, the Minister asserts that the Tribunal “did engage with the substance of the representations” by referring to the applicant’s early life and history of sexual abuse.

62    I accept, as contended by the applicant, that the Tribunal did not make any express reference to the representation that Australia bears responsibility for the abuse the applicant suffered. It does not necessarily follow, however, that the absence of any reference to the relevant representation leads to the conclusion that the Tribunal failed to complete the exercise of its jurisdiction.

63    Before the Tribunal, the applicant did not develop any cogent or forceful contention, as a freestanding proposition, that Australia’s institutional responsibility for any sexual abuse of a non-citizen was a factor that ought to influence the decision as to whether to cancel a visa for that non-citizen. The applicant did not even identify the occasions on which it is said that “Australia” bore responsibility, unlike the position taken in this Court. Without being in any way exhaustive, the development of a cogent and significant proposition in that regard would have required consideration and development of a number of matters.

64    First, it would have required consideration of the inter-relationship between the proposition and the principles in clause 5.2 of Direction 110, and likewise the Primary Considerations in clause 8 of Direction 110. For example, it would require consideration of how the function of protecting the Australian community sits with and is to be weighed against an alleged responsibility of “Australia” for the conduct that gives rise to the relevant risk to that community. Secondly, it would require consideration of what is meant by “Australia” being responsible. Does that mean the Australian government (in both its State and Federal incarnations)? Does it mean Australian institutions? Does it mean the Australian people in some more general sense (and thus include, as put to the Tribunal, abuse by the applicant’s uncle)? Thirdly, it would require consideration of how Australia was said to be responsible – for example, whether the incidents involved some form of negligence by relevant institutions, rather than just being occurrences at those institutions. Without these matters being addressed in a proper way, the proposition is nebulous and insubstantial.

65    None of these issues was developed in the present case. Rather, the contention was put in quite a different way. First, in paragraph [25] of the SFIC, under the rubric of “the protection of the Australian community” and the sub-category of “the nature and seriousness of the conduct”, the contention was advanced as part of a broader contention that sought to diminish the seriousness of the applicant’s conduct by placing that conduct in context – i.e. by emphasising the applicant’s unfortunate circumstances and difficult life. As noted above, the Minister responded in the same context by emphasising the various matters which have been set out above.

66    The Tribunal dealt with that contention at considerable length (at [75] – [99] and [150] of the Reasons). The Tribunal discussed the evidence, including evidence of a psychiatrist about the impact of sexual abuse on the applicant’s poor mental health and evidence from the applicant himself of the impact of that abuse. The Tribunal, in effect, accepted the crux of the Minister’s submissions. Whilst the Tribunal had regard to the applicant’s unfortunate background, the Tribunal concluded that the applicant’s background and what was described as the applicant’s “personal characteristics” (which was said to include his mental health) also contributed to the risk of reoffending, which the Tribunal took into account in connection with the consideration of the protection of the Australian community. The Tribunal’s reasons included the following:

150.    The Tribunal has formed the view that there is a medium risk of reoffending. This is primarily based on the Tribunal’s view that the Applicant lacks insight for his offending and also because of his personal characteristics (including low IQ, being susceptible to influences and mental health) which may not have been effectively addressed or overcome. The Tribunal finds that the offences in which the Applicant had previously engaged were very serious and if the Applicant were to reoffend, there may be a significant risk to the community. The Tribunal has determined that the protection of the community weighs very heavily against the revocation and gives that consideration considerable weight.

67    Thus the Tribunal dealt with the substance of the actual debate as it took place before the Tribunal, being a debate primarily about the relevance and weight of what might be mitigating factors in a criminal sentencing context. The merits or otherwise of the Tribunal’s conclusion is not for present consideration.

68    The second way in which the applicant advanced the contention before the Tribunal was under the heading “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct” in the SFIC. The applicant submitted (at [27] – [29] of the SFIC) that the principles in Direction 110 (specifically Principle 6) constituted an acknowledgement of “Australia’s duty of care, demonstrating a greater degree of tolerance towards the applicant’s criminal behaviour, which can be directly linked to his formative years and subsequent life experiences.” As discussed earlier, this is not an accurate summary of the operation of the principles in Direction 110, including Principle 6. There was no basis for the contention at SFIC [27] that clause 5.2 of Direction 110 contains any statement that “Australia should assume responsibility”, or that “[t]hrough Direction 110, the Minister acknowledges Australia’s duty of care.” Similarly, the extracted paragraphs from XCHQ at SFIC [28] do not state “it is reasonable…to anticipate that the Australian government would assume a higher level of responsibility and exercise greater leniency” in circumstances where there was an alleged “failure of both the states and federal government to protect” the applicant from sexual abuse. The Tribunal dealt with the submissions invoking Principle 6 by considering the matter through the proper framework of Principle 6.

69    There was therefore no cogent, substantial or clearly articulated argument that required separate consideration by the Tribunal in relation to the second way in which the applicant put the contention.

70    The third way in which the applicant put the contention was under the heading “Expectations of the Australian community”. A brief statement was made (paragraph [45] of the SFIC) that “the Australian community should also bear greater responsibility for this human tragedy.” It was also stated that, similar to Primary Consideration 1, “the weight of this primary consideration against the applicant should be moderated so that it does not outweigh, either individually or collectively, the other considerations in favour of the applicant.” As expressed in the SFIC, this was a modified way of stating that the applicant’s responsibility for his criminal conduct was diminished having regard to his unfortunate background and circumstances. The Tribunal dealt with that broad topic at some length, as discussed above in relation to the first way in which the relevant contention was advanced.

71    Thus the Tribunal dealt in a sufficient manner with the contentions in light of the way in which they were pursued before the Tribunal, and in light of the debate between the parties in the form that it took place in the Tribunal. To the extent to which there was any further overarching proposition before the Tribunal that Australia’s “responsibility” for the applicant’s conduct should be weighed against cancellation, that proposition was put in too nebulous and insubstantial a way to require any separate consideration by the Tribunal. In the way in which it was developed, it would not have been of significance to, or dispositive of, the decision. This is not a case where the omission in the Reasons of an express reference to the particular representation evidences that the Tribunal ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument that was advanced by the applicant.

Conclusion

72    For the foregoing reasons, the applicant has not established any jurisdictional error on the part of the Tribunal, and his application for judicial review must accordingly be dismissed with costs.

Associate:

Dated:    6 February 2026